THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


V 


HORNBOOK  CASE  SERIES 


ILLUSTRATIVE   CASES 


ON 


THE  LAW  OF  WILLS 


BY 

WALTER  T.  DUNMORE 

PROFESSOR  OF  LAW  IN  THE  WESTERN  RESERVE  UNIVERSITY 
AND  DEAN  OF  THE  FACULTY 


A  COMPANION  BOOK 

TO 

GARDNER  ON  WILLS  (2o  ED.) 


ST.  PAUL 
WEST   PUBLISHING   CO. 

1916 


OOPYBIGHT,    1916 
BY 

WEST  PUBLISHING  COMPANY 
(DUNM.CAS.  WILLS) 


THE  HORNBOOK  CASE  SERIES 


IT  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
•cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

WEST  PUBLISHING  COMPANY 
(iii)* 


748G55 


TABLE  OF  CONTENTS 


INTRODUCTION— HISTORY  OF  WILLS—  Page 

I.     Gifts  Causa  Mortis  and  Gifts  by  Will  Distinguished 1 

II.    A  Will  Distinguished  from  a  Deed 5 

FORM  OF  WILLS— 

I.    No  Particular  Form  Required. , 7 

II.     Duplicate    Wills 12 

III.     Incorporation  by  Reference 14 

FORM  OF  WILLS  (Continued)-NUNCUPATIVE— HOLOGRAPHIC- 
CONDITIONAL  WILLS— 

I.    Necessity  for  Testamentary  Intent  in  Nuncupative  Wills 20 

II.    Nuncupative  Wills  of  Soldiers  and  Sailors 24 

III.  Nuncupative  Wills  Pass  Title  to  Personalty  Only 28 

IV.  Holographic    Wills 29 

V.     Conditional  Wills 30 

AGREEMENTS  TO  MAKE  WILLS  AND  WILLS  RESULTING  FROM 
AGREEMENT— 

I.  The  Contract  to  Make  a  Will 33 

1.  Validity   33 

2.  Application  of  the  Statute  of  Frauds 35 

3.  Remedy  for  Breach 38 

II.    Joint    Wills 43 

WHO  MAY  BE  A  TESTATOR— 

I.     Wills  of  Married  Women 46 

II.     Wills  of  Felons 47 

III.  Nature  of  Testamentary  Capacity 49 

IV.  Capacity  to  do  Business  as  a  Test 52 

V.     Old  Age  as  Bearing  upon  Testamentary  Capacity 53 

VI.    Insanity  as  Affecting  Testamentary  Capacity 54 

1.  Nature  of  Insane  Delusions 54 

2.  Monomania    58 

VII.     Guardianship  as  Affecting  Testamentary  Capacity 60 

VIII.     Evidence  Relating  to  Testamentary  Capacity 62 

1.  Burden  of  Proof 62 

2.  Presumption  of  Sanity 65 

3.  Testator's  Condition  Before  and  After  Execution  of  Will. .  67 

4.  Opinion   70 

RESTRAINT  UPON  POWER  OF  TESTAMENTARY  DISPOSITION— 
WHO  MAY  BE  BENEFICIARIES— WHAT  MAY  BE  DIS- 
POSED OF  BY  WILL— 

I.    The  Rule  against  Perpetuities 72 

II.  Beneficiary  Incompetent  by  Considerations  of  Policy 77 

DUNM.CAS.WILLS  (v) 


VI  TABLE  OF  CONTENTS 

MISTAKE,  FRAUD,  AND  UNDUE  INFLUENCE—  Page 

I.    Mistake 82 

II.    Fraud    84 

III.    Undue  Influence 80 

1.  What  Constitutes 86 

2.  Confidential  Relations  as  Affecting 90 

3.  Evidence  93 

EXECUTION  OF  WILLS— 

I.     Signing  by  Testator 98 

1.  Sufficiency  of  Signature 98 

2.  Time    102 

3.  Place 106 

II.    Acknowledging  Signature  Before  Witnesses 112 

III.  Publication   115 

IV.  Attestation    120 

1.  Competency  of  Witnesses 120 

2.  Signing  by  Witnesses 126 

A.  Sufficiency  of  Signatures 126 

B.  When  Witnesses  Must  Sign 130 

3.  Presence  of  Testator 135 

REVOCATION  AND  REPUBLICATION  OF  WILLS— 

I.    Revocation 138 

1.  By  Mutilation  and  Cancellation 138 

2.  Dependent  Relative  Revocation 143 

3.  By  a  Subsequent  Writing 145 

4.  By  Change  of  Circumstances 150 

A.  Birth  of  Issue 150 

B.  Divorce    154 

5.  Presumption  When  Will  Not  Found 158 

IL    Republication   160 

1.  By  Codicil 160 

2.  Consequences  of  Republication 162 

CONFLICT  OF  LAWS— 

I.    Law  by  Which  Execution  of  Will  is  Governed 168 

II.    Change  of  Domicile  and  Effect  Thereof 170 

PROBATE  OF  WILLS— 

I.    Jurisdiction    173 

II.     Limitation   on    Probate 175 

III.  Who  May  Propound  Will ~ 178 

IV.  Proceedings  When  Will  Contested 180 

1.  Parties    ISO 

2.  Pleading 181. 

3.  Costs    184 

V.    Effect  of  Probate 186 

VI.     Evidence  to  Prove  Contents  of  Lost  or  Destroyed  Will 188 

VII.     Probate  or  Record  of  Foreign  Wills 193 

ACTIONS  FOR  THE  CONSTRUCTION  OF  WILLS— 

I.     When  Action  Lies 198 

IL    Parties   200 


TABLE  OF   CONTENTS  Vll 

CONSTRUCTION  OF  WILLS— CONTROLLING  PRINCIPLES—  Page 

I.    General  Rules  of  Construction 203 

1.  Time  from  Which  Will  Speaks 203 

2.  Presumption  against  Partial  Intestacy 205 

3.  Technical   Words 207 

4.  Two  Irreconcilable  Parts 210- 

5.  Gifts  by  Implication . . . . 212 

II.    Extrinsic  Evidence  of  Intention 215 

1.  Surrounding   Circumstances 215 

2.  Declarations  of  Testator 218 

CONSTRUCTION    (Continued)— DESCRIPTION    OF    SUBJECT    MAT- 
TER— 

I.    Words  Operative  to  Pass  Entire  Estate 224 

II.    Words  Operative  to  Pass  Real  Estate 225 

III.  Words  Operative  to  Pass  Personalty 22T 

IV.  The  Residuary  Clause. 230 

CONSTRUCTION  (Continued)— DESCRIPTION  OF  BENEFICIARY— 

I.    Technical  and  Non-Technical  Terms 23t 

1.  Children   231 

2.  Issue 235 

3.  Heirs 239 

II.    When  Beneficiaries  Take  as  a  Class 241 

III.     Time  of  Ascertaining  Members  of  a  Class 245- 

1.  Immediate    Gifts 245 

2.  Postponed  Gifts 247 

CONSTRUCTION  (Continued)— NATURE  AND  DURATION  OF  INTER- 
ESTS— 

I.    Estates  of  Inheritance 250- 

1.  Fee    Simple 250 

2.  Fee    Tail 252 

3.  The  Rule  in  Shelley's  Case 255 

II.     Estates  for  Life 255 

III.     Interests  in  Personal  Property 257 

CONSTRUCTION   (Continued)— VESTED  AND  CONTINGENT   INTER- 
ESTS—REMAINDERS— EXECUTORY  DEVISES— 

I.    Vested    Legacies 26O 

II.    Vested    Remainders , 262 

111.     Contingent    Remainders 265 

IV.     Executory    Devises 269 

CONSTRUCTION  (Continued)— CONDITIONS— 

1.    Conditions  in  General 272 

1.  Precedent   272. 

2.  Subsequent 274 

IL     Particular   Conditions 276 

1.  Conditions   Affecting  Marriage 276 

2.  Conditions  Affecting  Power  of  Alienation 280 

3.  Conditions  Affecting  Right  to  Contest  Will 282 

CONSTRUCTION  (Continued)— TESTAMENTARY  TRUSTS  AND  POW- 
ERS— 

I.     Precatory  Words  as  Creating  a  Trust 285 

II.    Trusts  Not  Appearing  in  the  Will 289 

III.  Duration  of  Trust 290 

IV.  Powers  .  293 


TABLE  OP  CONTENTS 

LEGACIES  —  GENERAL  —  SPECIFIC  —  DEMONSTRATIVE  —  CU- 
MULATIVE—LAPSED AND  VOID  — ABATEMENT  — 
ADEMPTION— ADVANCEMENTS—  Page 

L     Legacies   . . . . 296 

1.  General 296 

2.  Specific 298 

8.    Demonstrative    299 

H.    Ademptlon 302 

1.  By  Change  of  Subject  Matter 302 

2.  By  Subsequent  Payment 303 

III.    Lapse 304 

LEGACIES  CHARGED  UPON  LAND  OR  OTHER  PROPERTY— 

L    Legacies  Charged  Upon  Land 306 

IL    Enforcement  of  Charge 309 

PAYMENT  OF  TESTATOR'S  DEBTS— 

I.    Primary  Liability  of  Personal  Estate 311 

II.    Exoneration  of  Mortgaged  Property 312 

ELECTION— 

L     Necessity  of  Election 314 

II.     Implied  Election— How  Effected 316 

III.    Election  by  Surviving  Spouse 317 

HIGHTS  OF  BENEFICIARIES  NOT  PREVIOUSLY  DISCUSSED— 

I.    Interest  on  Legacies 319 

II.    Estoppel  of  Beneficiaries  to  Contest  Will 321 


TABLE  OF  CASES 


Page 

Allen  v.  Bromberg 42 

American    Board    of    Cont'rs   for 

Foreign  Missions,  In  re 60 

Andrews  v.  Lincoln 72 

Armstrong  v.  Crapo 210 

Arnold's  Estate,  In  re 227 

Banks,  In  re 311 

Banks  v.  Busbridge 311 

Banks  v.  Howard 33 

Barksdale  v.  Davis 181 

Bates  v.   Kingsley 205,  230 

Benbrook  v.  Yancy 289 

Bibb  v.  Thomas 138 

Billings'  Estate,  In  re 29 

Bloor  v.  Platt 180 

Bolman  v.  Overall 38 

Bridle,  In  re 302 

Bryan,  Appeal  of 15 

Bullivant's  Will,  In  re 102 

Bump's  Estate,  In  re 184 

Campbell's  Will,  In  re 160 

Carpenter  v.  Carpenter's  Trustee  290 

Carpenter  v.  Snow 150 

Claflin's  Will,  In  re 115 

Clark  v.  Turner 188 

Clark's  Estate,  In  re 193 

Collyer  v.  Collyer 158 

Grossman  v.  Crossman 12 

Crownlnshield  v.  Crowninshield . .  62 

Cunningham,  In  re 145 

De  Wolf  y.  Middleton 269 

Doe  d.  Hiscocks  v.  Hiscocks 220 

Doe  d.  Morgan  v.  Morgan 218 

Doty  v.  Teller 252 

Downing  v.  Grigsby 203 

Dunn  v.  Cory 231 

Eaton  v.  Brown 30 

Emery  v.  Clough 1 

Evans  v.  Hunter. .                          .  296 


Forrest  v.  Porch 

DUNM.CAS.WILLS 


239 


Page 

Gelbach  v.  Shively 299 

Gerbrich  v.  Freitag 43 

German  Pioneer  Verein  v.  Meyer  215 

Ginter  v.  Ginter 86 

Good  v.  Flchthorn 250 

Goods  of  Boehirt,  In  re 82 

Grant  v.  Grant •  35 

Green  v.  Tribe 162 

Haddock  v.  Boston  &  M.  R.  Co. . .  175 

Hanley  v.  Kraf  tczyk 178 

Haviland  v.  Haviland 262 

Haward  v.  Peavey 265 

Hiscocks    v.    Hiscocks 220 

Holt's  Will,  In  re 124 

Hopkins   v.    Wheeler 70 

Horn's  Estate  v.  Bartow 130 

Hovey  v.  Hovey 316 

Howard  v.  Hunter 139 

Rowland  v.  Slade 245 

Hubbard  v.  Hubbard 24 

Inge  v.  Jones 247 

Izard   v.    Hurst 303 

Jones'  Estate,  In  re 154 

Keys  v.  Wright 321 

Knight  v.  Wheedon 168 

Knox,  Appeal  of 11 

Knox's  Estate,  In  re 11 

Leathers  T.  Gray 207,  255 

Longer's  Estate,  In  re 7 

Lumpkin  v.  Lumpkin 200 

Lynch  v.  Melton 274 

Mclntyre's  Estate,  In  re 5 

Male's  Will,  In  re 20 

Masterson  v.   Townshend 212 

Maurer  v.   Reifschneider 28 

Meads  v.  Earle 106 

Merrill  v.  Wisconsin  Female  Col- 
lege     272 

Merryfield's  Estate,  In  re 9 


TABLE    OF    CASES 


Page 

Miller  v.   Swan 173 

Miller's  Estate,  In  re 282 

Moore  v.  Baker 314 

Morgan  v.  Morgan 75,  218 

Murphy's  Estate,  In  re 241 

Newton  v.  Seaman's  Friend  Soc.  14 
Nordquist's  Estate  v.  Sahlbom . .  317 
Nunn  v.  Ehlert 112 

Osgood  v.  Breed 46 

Parfltt  v.  Lawless 90 

Phillips  v.  Ferguson 276 

Phillips  v.  Phillips 285 

Pilcher  v.  Pilcher 98 

Poll  v.  Cash 198 

Pooler  v.  Cristman 53 

Pope's  Will,  In  re 126 

Potter  v.  Jones 54 

Rankin's  Heirs  v.  Rankin's  Ex'rs    47 

Riggs  v.  Palmer 77 

Riggs  v.  Riggs 136 

Rivard  v.   Rivard 58 

Rowcliffe  v.  Belson 52 

Saunders  v.  J.  R.  T.  Samarreg  Co.  110 

Sehr  v.  Lindemann 49 

Shailer  v.  Bumstead 93 

Shires  v.  Glascock. .  .  135 


Page 

Shute  v.  Sargent 170 

Simonsen  v.  Hutchinson 306 

Simpson  v.  Foxon 147 

Skinner  v.  McDowell 255 

Soper  v.  Brown 235 

Sparhawk  v.  Sparhawk 120 

Strong,  Appeal  of 143 

Sturdevant,  Appeal  of 65 

Sumner  v.  Crane 186 

Swan  v.  Fidelity  Trust  &  Safety- 
Vault  Co 173 

Torrey  v.  Torrey 225 

Trustees  Unitarian  Soc.  v.  Tufts  298 
Turner  v.  Laird 312 

Unitarian  Soc.  v.  Tufts 298 

Waite  v.  Frisbie 100 

Wardwell  v.  Hale 260 

Warner  v.  Willard 224 

Whittemore  v.  Russell 257 

Wilbor,  In  re 304 

Wilkinson  v.  Joughin 84 

Wilson  v.  Foss 309 

Winch's  Estate,  In  re 67 

Wineland,  Appeal  of 109 

Woodward's  Estate  v.  Holt  on 319 

Young  v.  Hillier 293 

Zillmer  v.  Landguth 2SO 


HORNBOOK  CASES  ON  WILLS 


INTRODUCTION— HISTORY  OF  WILLS 
I.  Gifts  Causa  Mortis  and  Gifts  by  Will  Distinguished1 

EMERY  v.  CLOUGH. 

(Supreme  Court  of  New  Hampshire,  1886.    63  N.  H.  552,  4  Atl.  796,  56  Am. 

Lep.   543.) 

Two  cases, — one  a  bill  in  equity,  under  Gen.  Laws,  c.  209,  §  2,  for 
discovery  with  reference  to  and  restoration  of  a  municipal  bond  for 
$1,000,  alleged  to  belong  to  said  estate,  and  to  be  unlawfully  withheld 
from  the  plaintiff  by  the  defendant ;  the  other  an  action  of  assumpsit  to 
recover  $280  claimed  to  belong  to  said  estate,  and  to  be  in  the  posses- 
sion of  the  defendant.  Facts  found  by  the  court: 

The  intestate,  William  Emery,  died  at  Montpelier,  Vermont,  June  11, 
1882,  while  temporarily  there.  His  domicile  at  that  time,  and  during 
his  whole  life,  was  at  Loudon,  in  this  state.  The  defendant's  domi- 
cile is  now,  was  at  that  time,  and  for  many  years  has  been,  at  said 
Loudon.  For  several  months  before  his  death  William  was  sick,  and 
on  the  twenty-first  day  of  May,  being  then  temporarily  at  Montpelier, 
he  delivered  to  the  defendant,  as  a  donatio  causa  mortis,  the  bond 
above  mentioned;  and  on  the  twenty-seventh  day  of  May  he  delivered 
to  her,  as  gifts  to  sundry  persons,  then  and  now  residing  in  Loudon, 
the  sum  of  $280,  to  be  by  her  delivered  to  them,  at  Loudon,  after  his 
decease ;  and  immediately  after  his  death,  but  before  suit  was  brought, 
she  paid  this  money  to  the  parties,  as  directed.  No  one  was  present 
when  William  delivered  the  bond  and  money  to  the  defendant,  and  she 
offered  no  evidence  to  prove  the  same,  except  her  own  testimony,  and 
a  memorandum  in  writing,  signed  by  William,  (which  is  referred  to  in 
the  opinion.)  This  evidence  the  plaintiff  claims  is  incompetent  and 
insufficient.  No  attempt  was  made  to  prove  the  gifts  in  accordance 
with  Gen.  Laws,  c.  193,  §  17. 

The  questions  arising  upon  the  foregoing  facts  are  reserved. 

SMITH,  J.  It  is  contended  on  the  part  of  the  defendant  that  the 
transaction  in  Vermont,  whereby  the  defendant  became  possessed  of 
the  bond,  was  a  donatio  causa  mortis,  valid  as  an  executed  contract 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  3. 
DUNM.CAS.WILLS — 1 


2  INTRODUCTION — HISTORY    OF   WILLS 

under  the  laws  of  Vermont,  and  therefore  valid  here.  The  plaintiff 
contends  that  the  transaction  was  in  the  nature  of  a  testamentary  dis- 
position of  property,  and  if  valid  in  Vermont  as  a  donatio  causa  mor- 
tis, it  is  not  valid  in  this  state,  because  it  is  not  proved  by  the  testi- 
mony of  two  indifferent  witnesses,  upon  petition  by  the  donee  to  the 
probate  court  to  establish  the  gift,  filed  within  60  days  after  the  decease 
of  the  donor.  Gen.  Laws,  c.  193,  §  17.  The  domicile  of  the  parties  at 
the  time  of  the  delivery  of  the  bond  to  the  defendant,  and  ever  after- 
wards, to  the  death  of  the  donor,  being  in  this  state,  it  is  claimed  that 
the  neglect  of  the  defendant  to  establish  the  gift  in  the  probate  court 
is  fatal  to  her  right  to  retain  the  bond.  Every  requisite  to  constitute 
a  valid  gift  causa  mortis  under  the  laws  of  Vermont,  where  the  parties 
were  temporarily  residing  at  the  time  of  the  delivery  of  the  bond,  was 
complied  with.  Holley  v.  Adams,  16  Vt.  206,  42  Am.  Dec.  508;  Cald- 
well  v.  Renfrew,  33  Vt.  213 ;  French  v.  Raymond,  39  Vt.  623.  Every 
requisite,  also,  to  constitute  such  a  gift  under  the  laws  of  New  Hamp- 
shire was  complied  with,  except  the  post  mortem  proceedings  required 
by  our  statute.  The  question,  therefore,  is  whether  the  lex  loci  or  the 
lex  domicilii  governs,  and  the  answer  to  this  question  depends  upon 
the  legal  character  and  effect  of  such  gifts. 

A  gift  causa  mortis  is  often  spoken  of  in  the  books  as  a  testamentary 
disposition  of  property,  or  as  being  in  the  nature  of  a  legacy,  (Jones  v. 
Brown,  34  N.  H.  439 ;  1  Williams,  Ex'rs,  686,  note  1 ;)  and  such  was 
the  doctrine  of  the  civil  law,  (2  Kent,  Comm.  444,  and  authorities  cited 
in  note  b.)  Such  gifts  are  always  made  upon  condition  that  they  shall 
be  revocable  during  the  life-time  of  the  donor,  and  that  they  shall  re- 
vest in  case  he  shall  survive  the  donee,  or  shall  be  delivered  from  the 
peril  of  death  in  which  they  were  made.  The  condition  need  not  be 
expressed,  as  it  is  always  implied,  when  the  gift  is  made  in  the  ex- 
tremity of  sickness,  or  in  contemplation  of  death.  It  is  sometimes,  per- 
haps generally,  said,  in  the  English  cases,  that  a  gift  causa  mortis  does 
not  vest  before  the  donor's  death ;  but  in  Nicholas  v.  Adams,  2  Whart. 
(Pa.)  17,  Gibson,  C.  J.,  considered  this  to  be  inaccurate;  holding  that 
this  gift,  like  every  other,  is  not  executory,  but  executed  in  the  first 
instance  by  delivery  of  the  thing,  though  defeasible  by  reclamation,  the 
contingency  of  survivorship,  deliverance  from  peril,  or  from  some  oth- 
er act  inconsistent  with  the  gift,  and  indicating  the  donor's  purpose  to 
resume  the  possession  of  the  gift.  1  Williams,  Ex'rs,  686,  note  1 ; 
Marshall  v.  Berry,  13  Allen  (Mass.)  43,  46. 

A  gift  causa  mortis  resembles  a  testamentary  disposition  of  property 
in  this :  that  it  is  made  in  contemplation  of  death,  and  is  revocable  dur- 
ing the  life  of  the  donor.  It  is  not,  however,  a  testament,  but,  in  its 
essential  characteristics,  is  what  its  name  indicates, — a  gift.  Actual  de- 
livery by  the  donor  in  his  life-time  is  necessary  to  its  validity,  or,  if 
the  nature  of  the  property  is  such  that  it  is  not  susceptible  of  corporeal 
delivery,  the  means  of  obtaining  possession  of  it  must  be  delivered. 
The  donee's  possession  must  continue  during  the  life  of  the  donor,  for 


GIFTS  CAUSA  MORTIS  AND  GIFTS  BY  WILL  DISTINGUISHED  3 

recovery  of  possession  by  the  latter  is  a  revocation  of  the  gift.  But,  in 
case  of  a  legacy,  the  possession  remains  with  the  testator  until  his 
decease.  The  title  to  a  gift  causa  mortis  passes  by  the  delivery,  de- 
feasible only  in  the  life-time  of  the  donor,  and  his  death  perfects  the 
title  in  the  donee  by  terminating  the  donor's  right  or  power  of  de- 
feasance. The  property  passes  from  the  donor  to  the  donee  directly, 
and  not  through  the  executor  or  administrator,  and  after  his  death  it 
is  liable  to  be  divested  only  in  favor  of  the  donor's  creditors.  In  this 
respect  it  stands  the  same  as  a  gift  inter  vivos.  It  is  defeasible  in  fa- 
vor of  creditors,  not  because  it  is  testamentary,  but  because,  as  against 
creditors,  one  cannot  give  away  his  property.  A  gift  causa  mortis  is 
not  subject  to  probate,  nor  to  contribution  with  legacies,  in  case  the 
assets  are  insufficient,  nor  to  any  of  the  incidents  of  administration. 
It  is  not  revocable  by  will,  for  as  a  will  does  not  operate  until  the 
decease  of  the  testator,  and  the  donor,  at  his  decease,  is  divested  of  his 
property  in  the  subject  of  the  gift,  no  right  or  title  in  it  passes  to  his 
representatives.  The  donee  takes  the  gift,  not  from  the  administrator, 
but  against  him,  and  no  act  or  assent  on  the  part  of  the  administrator 
is  necessary  to  perfect  the  title  of  the  donee.  Cutting  v.  Gilman,  41 
N.  H.  147,  151;  Marshall  v.  Berry,  supra;  Doty  v.  Willson,  47  N.  Y. 
580,  585;  Dole  v.  Lincoln,  31  Me.  422;  Chase  v.  Redding,  13  Gray 
(Mass.)  418;  Basket  v.  Hassell,  107  U.  S.  602,  2  Sup.  Ct.  415,  27  L.  Ed. 
500;  1  Williams,  Ex'rs,  686,  note  1.  A  valid  gift  inter  vivos  may  be 
made  on  similar  terms.  Worth  v.  Case,  42  N.  Y.  362 ;  Dean  v.  Carruth, 
108  Mass.  242;  Warren  v.  Durfee,  126  Mass.  338. 

A  gift  causa  mortis,  in  some  respects,  may  be  said  to  resemble  a  con- 
tract, the  mutual  consent  and  concurrent  will  of  both  parties  being  nec- 
essary to  the  validity  of  the  transfer.  2  Kent,  Comm.  437,  438 ;  1  Pars. 
Gont.  234.  Contracts  are  commonly  understood  to  mean  engagements 
resulting  from  negotiation,  (2  Kent,  Comm.  437 ;)  and  in  Peirce  v.  Bur- 
roughs, 58  N.  H.  302,  it  was  held  that  the  assent  of  both  parties  is  as 
necessary  to  a  gift  as  to  a  contract. 

Prior  to  the  passage  of  chapter  106,  Laws  1883,  the  law  required  a 
will  to  be  executed  according  to  the  law  of  the  testator's  domicile  at  the 
time  of  his  death.  Saunders  v.  Williams,  5  N.  H.  213;  Heydock's  Ap- 
peal, 7  N.  H.  496.  The  distribution  of  the  estate  of  a  deceased  person 
among  the  heirs  or  legatees  is  to  be  made  according  to  the  law  of  the 
domicile  of  the  testator  or  intestate  at  the  time  of  his  death.  Leach 
v.  Pillsbury,  15  N.  H.  137.  But  the  plaintiff's  intestate  did  not  die 
possessed  of  the  bond  in  suit.  It  did  not  vest  in  his  administrator,  and 
is  not  assets  of  his  estate.  The  defeasible  title  which  vested  in  the  de- 
fendant at  the  time  of  the  delivery  was  not  defeated  by  the  donor  in 
his  life-time,  and  his  right  and  power  to  defeat  it  ceased  with  his  death. 
A  gift  causa  mortis  is  not  a  testament.  If  it  is  a  contract,  in  this  case 
it  was  executed  in  Vermont,  in  the  life  of  the  plaintiff's  intestate.  If 
it  is  not  a  "contract,"  as  that  term  is  commonly  understood,  it  is  a  gift 
which  received  the  assent  of  both  parties,  and  nothing  remained  to  per- 


4  INTRODUCTION — HISTORY    OF    WILLS 

feet  the  conditional  title  of  the  defendant  before  the  decease  of  the 
donor.  The  transfer  of  the  bond  being,  therefore,  either  an  executed 
contract  or  a  perfected  gift  in  Vermont,  and  valid  under  the  laws  of 
Vermont,  is  valid  here;  and  no  question  arises  whether  our  statute 
(Gen.  Laws,  c.  193,  §  17)  affects  the  contract  or  the  remedy.  That  sec- 
tion applies  to  gifts  made  in  this  state. 

As  to  the  sum  of  $280,  the  money  was  delivered  to  the  defendant  as 
gifts  causa  mortis  to  sundry  persons  then  and  now  residing  in  this  state, 
designated  by  the  donor,  to  be  by  the  defendant  delivered  to  them  after 
his  decease.  Delivery  to  a  third  person  for  the  donee's  use  is  as  effec- 
tual as  delivery  to  the  donee.  Cutting  v.  Gilman,  41  N.  H.  147,  151, 
152,  and  authorities  cited;  Drury  v.  Smith,  1  P.  Wms.  404- ;  Marshall  v. 
Berry,  13  Allen  (Mass.)  43.  And  there  is  no  suggestion  that  the  gift 
of  the  money  stands  differently  from  that  of  the  bond. 

The  question  as  to  the  mode  of  proof  remains  to  be  considered.  In 
the  first  case  it  has  not  been  shown,  and  it  does  not  appear,  that  injus- 
tice will  be  done  by  excluding  the  defendant  from  testifying.  Gen. 
Laws,  c.  228,  §§  13,  16,  17.  As  that  question  has  not  been  passed  upon 
at  the  trial  term,  it  is  still  open,  and  the  ruling  of  the  judge  will  be  sub- 
ject to  exception  and  revision.  The  written  memorandum  on  the  en- 
velope containing  the  bond,  signed  by  the  plaintiff's  intestate,  and  pro- 
duced by  the  defendant,  reads  as  follows:  "Given  to  Hannah  K. 
Clough  on  condition  that  if  I  regain  my  health  it  is  to  be  returned  to 
me  in  good  faith,  otherwise  the  gift  is  absolute.  William  Emery." 
This  memorandum  is  evidence  sufficient  to  establish  a  gift  causa  mortis. 
Curtis  v.  Portland  Sav.  Bank,  77  Me.  151,  52  Am.  Rep.  750.  It  con- 
tains a  statement  of  no  more  than  is  always  implied  when  such  a  gift 
is  made.  The  donor  could  not  tell  whether  he  should  die,  or  recover 
from  his  sickness.  If  he  should  recover,  the  law  would  hold  the  gift 
void.  Grymes  v.  Hone,  49  N.  Y.  17,  21,  10  Am.  Rep.  313.  In  the  sec- 
ond case  the  defendant  is  a  nominal  party.  The  real  defendants  are 
the  donees.  The  facts  stated  show  no  reason  why  she  should  not  be 
allowed  to  testify,  and  injustice  might  be  done  if  she  were  excluded. 
Drew  v.  McDaniel,  60  N.  H.  480;  Welch  v.  Adams,  63  N.  H.  344,  351, 
1  Atl.  1,  56  Am.  Rep.  521. 

Case  discharged. 


A  WILL   DISTINGUISHED   FROM    A    DEED 


II.  A  Will  Distinguished  from  a  Deed* 


In  re  McINTYRE'S  ESTATE. 

(Supreme  Court  of  Michigan,  1909.     156  Mich.  240,  120  N.  W.  587.) 

Error  to  Circuit  Court,  Lapeer  County ;  George  W.  Smith,  Judge. 

Marion  Mclntyre  offered  an  instrument  for  probate  as  the  will  of 
John  D.  Mclntyre,  deceased,  and  from  an  adverse  judgment  he  brings 
error.  Affirmed. 

HOOKER,  J.  An  ordinary  warranty  deed  containing  the  following 
unusual  paragraph  was  offered  for  probate  as  a  will :  "It  is  understood 
that  this  deed  is  made  for  the  purpose  of  creating  a  future  estate,  pre- 
serving to  the  grantor  hereof  and  his  wife  full  use  and  occupancy  there- 
of until  the  death  of  the  survivor  of  them,  to  the  end  that  the  use  and 
occupation,  rental,  and  enjoyment  thereof  shall  be  and  belong  to  them 
and  the  survivor  of  them  during  life,  and  the  full  title  and  enjoyment 
of  the  above-described  land  shall  only  become  operative  upon  the  death 
of  the  survivor  of  the  grantors  hereof,  and  at  that  time,  and  not  before, 
the  said  grantee  shall  enjoy  the  full  title  and  control  hereof."  It  was 
signed  by  John  B.  Mclntyre  and  Elizabeth,  his  wife,  and  upon  its  face 
appeared  to  be  properly  executed.  At  the  time  of  its  execution  and 
acknowledgment,  it  was  left  with  the  scrivener,  and  was  delivered  to 
the  grantee  named  in  it  after  the  death  of  John  B.  Mclntyre,  but  while 
Elizabeth-  Mclntyre  was  living.  She  has  since  died.  Probate  of  this 
instrument  was  denied  by  the  probate  judge.  Upon  appeal  the  circuit 
judge  directed  a  verdict  for  the  contestants,  and  the  proponent  has  ap- 
pealed. 

The  errors  alleged  are  that  the  circuit  judge  erred  in  directing  a  ver- 
dict for  contestant  and  in  not  directing  a  verdict  for  the  proponent. 
Testimony  was  introduced,  showing  the  circumstances  under  which  the 
writing  was  executed,  and  the  directions  regarding  its  custody  and  de- 
livery. The  grantor  caused  this  deed  to  be  made,  and  directed  the 
scrivener  to  deliver  it  when  the  grantee  should  execute  a  prescribed 
mortgage  upon  the  premises  to  the  grantor.  See  Mclntyre  v.  Mclntyre, 
147  Mich.  365,  110  N.  W.  960,  where  this  deed  was  held  ineffective  to 
convey  title  for  want  of  delivery.  The  inference  from  that  opinion  is 
that  all  considered  that  it  did  convey  title  to  the  property  if  delivered. 
This  proceeding  was  instituted  after  the  former  decision. 

It  seems  to  be  conceded  that  to  constitute  a  will  the  instrument  must 
be  one  which  is  not  by  its  terms  sufficient  to  convey  a  present  interest, 
because,  if  it  does,  it  negatives  the  design  to  reserve  the  right  of  revo- 
cation. Such  is  clearly  the  rule  laid  down  in  Clay  v.  Layton,  134  Mich. 

a  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  4,  5. 


6  INTRODUCTION — HISTORY   OF   WILLS 

337,  96  N.  W.  458,  and  Hitchcock  v.  Simpkins,  99  Mich.  198,  58  N.  W. 
47.  Two  provisions  of  the  deed  were  relied  on  to  sustain  proponent's 
contention  that  the  terms  of  the  deed  were  not  sufficient  to  create  a 
vested  interest  in  a  grantee:  (a)  "It  is  understood  that  this  deed  is 
made  for  the  purpose  of  creating  a  future  estate ;"  (b)  "and  the  full 
title  and  enjoyment  *  *  *  shall  only  become  operative  upon  the 
death  of  the  survivor  of  the  grantors  hereof,  and  at  that  time,  and  not 
before,  the  said  grantee  shall  enjoy  the  full  title  and  control  hereof." 
Our  statute  (Comp.  Laws)  defines  "a  future  estate"  as  "an  estate  limited 
to  commence  in  possession  at  a  future  day,"  etc.,  and  by  section  8795 
they  are  said  to  be  either  vested  or  contingent.  There  is  no  contingency 
mentioned  in  this  deed.  The  grantee's  right  to  possession  was  inevita- 
ble on  the  happening  of  events  which  were  inevitable.  He  had,  there- 
fore, a  vested  interest. 

It  is  contended  that  this  conclusion  is  inconsistent  with  the  latter  pro- 
vision. That  provision  undertook  to  reserve  to  the  grantors  the  use  and 
occupancy  only  for  their  lives.  It  did  not  provide  that  no  present  title 
should  pass,  but  only  that  "full"  title  and  "control"  should  not  be  "en- 
joyed until  the  death  of  the  survivor  of  the  grantors."  In  short,  it  is 
clear  that  the  possession  only  was  withheld.  The  cases  cited  by  counsel 
involved  instruments  not  open  to  such  a  construction. 

The  order  is  affirmed,  with  costs  against  proponent 


FORM  OF  WILLS 


FORM  OF  WILLS 
I.  No  Particular  Form  Required1 

In  re  LONGER'S  ESTATE. 

(Supreme  Court  of  Iowa,  1899.     108  Iowa,  34,  78  N.  W.  834,   75  Am.  St. 

Rep.  206.) 

This  is  a  proceeding  to  secure  the  probate  of  an  instrument  purport- 
ing to  be  the  will  of  Wenzel  Longer,  deceased.  The  probate  was  con- 
tested and  refused,  and  from  such  judgment  the  proponents  appeal. 

WATERMAN,  J.    The  instrument  offered  for  probate  was  as  follows : 

"February  17,  1897.  I  agree  to  will  to  Rosie  Hinek  four  hundred 
and  fifty  dollars  $450.00.  Jim  Longer  a  house  and  lot  in  Riverside. 
Any  Marek  two  hundred  and  fifty  dollars  $250.00.  Barbara  Fouchek 
three  hundred  dollars  $300.00.  Mary  Hotz  five  dollars  $5.00.  Jose 
Hinek  one  hundred  and  fifty  dollars  $150.00.  Fannie  Parizk  five  hun- 
dred dollars  $500.00.  And  what  remains  to  Jim  Longer's  children. 
The  funeral  expensis  is  to  be  paid  by  Jim  Longer.  Vaclav  Longer. 
"Witnesses 

""Justice   of    the   Peace 

"Ed.  Stackman. 
"Joseph  Rabas." 

Among  other  objections  urged  by  the  contestants  it  was  said  that 
the  instrument  is  not  in  fact  a  will.  In  addition  to  the  testimony  re- 
lating to  its  execution,  the  court  received  evidence  as  to  the  intent  and 
purpose  of  Longer  in  executing  it,  and  made  the  following  findings : 

"(3)  At  the  time  of  the  signing,  subscribing,  and  execution  of  said 
instrument  as  aforesaid,  said  Vaclav  Longer  was  of  sound  and  dis- 
posing mind;  and  said  instrument  was  voluntarily  executed  by  him, 
with  knowledge  of  its  provisions,  without  any  undue  influence  or 
fraud  exerted  upon  him  in  the  execution  of  the  same. 

"(4)  The  parol  evidence  introduced  shows  that  at  the  time  of  the 
signing  and  execution  of  said  instrument,  Exhibit  A,  the  said  Vaclav 
Longer  thought  he  was  thereby  executing  his  last  will  and  testament, 
and  intended  the  said  instrument,  Exhibit  A,  at  the  time  of  its  execu- 
tion, to  be  and  constitute  his  last  will  and  testament. 

"(5)  At  the  time  and  place  of  the  execution  of  said  instrument,  the 
said  Vaclav  Longer  requested  the  witnesses  thereto,  to  wit,  Ed.  Stack- 
man and  Joseph  Rabas,  to  subscribe  their  names  to  said  instrument  as 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  6,  7. 


8  FORM  OF  WILLS 

i 

witnesses  to  his  will;  and  in  obedience  to  said  request,  properly  and 
correctly  communicated,  the  said  witnesses  did  at  said  time  and  place 
properly  subscribe  their  names  to  said  instrument,  and  witnessed  the 
same,  as  the  last  will  and  testament  of  the  said  Vaclav  Longer. 

"(6)  The  said  instrument,  Exhibit  A,  was  in  every  manner  and 
form  executed  and  witnessed  in  full  and  complete  compliance  with 
the  provisions  for  the  execution,  signing,  and  witnessing  of  wills  in  the 
state  of  Iowa,  except  as  hereinafter  stated :  Said  Vaclav  Longer  died 
on  or  about  the  28th  day  of  February,  1898,  near  Lone  Tree,  in  John- 
son county,  Iowa;  and  said  instrument,  Exhibit  A,  was  executed  at 
the  same  place. 

"(7)  At  the  time  of  the  death  of  said  Vaclav  Longer,  he  was  up- 
wards of  sixty  years  old ;  and  he  was  the  owner  of  a  house  and  lot, 
located  in  Riverside,  in  Washington  county,  Iowa,  and  about  two 
thousand  dollars  ($2,000)  in  personal  property. 

"(8)  Said  Vaclav  Longer,  deceased,  made  no  effort  to  execute  a 
will,  except  the  execution  of  Exhibit  A,  offered  in  evidence  in  the  trial 
of  this  cause ;  and  said  Vaclav  Longer  and  James  Longer  are  one  and 
the  same  person. 

"(9)  The  court  further  finds  that  the  said  instrument,  Exhibit  A, 
is  not  sufficient  in  its  terms  to  constitute  a  will  or  testament,  in  that 
the  same  has  no  expression  or  terms  of  bequest  or  devise  to  any  parties 
therein  named,  or  any  other  person.  Therefore  the  finding  of  the 
court  herein  is  against  the  proponents,  and  the  said  instrument,  Ex- 
hibit A,  is  refused  admission  to  probate  as  the  last  will  and  testament 
of  Vaclav  Longer,  deceased,  and  hereby  declared,  from  its  terms,  to 
constitute  no  will.  D.  Ryan,  Judge." 

We  cannot  agree  with  the  conclusion  of  law  announced  by  the  trial 
court.  No  particular  form  is  required  for  a  will.  Much  latitude  is 
allowed  in  the  construction  of  such  instruments.  Wescott  v.  Binford, 
104  Iowa,  645,  651,  652,  74  N.  W.  18,  65  Am.  St.  Rep.  530.  The  main 
object  of  the  courts  is  to  learn  the  intention  of  the  maker.  Here,  the 
intention  being  known,  all  inartificiality  of  language  or  looseness  of 
expression  must  yield  to,  and  be  governed  by,  it.  Different  papers 
may  be  construed  together,  as  constituting  a  will.  An  instrument  in 
the  form  of  a  deed,  but  executed  with  the  formalities  of  a  will,  and 
by  its  terms  to  take  effect  after  death,  has  been  held  a  will.  In  re 
Lautenshlager's  Estate,  80  Mich.  285,  45  N.  W.  147.  See,  also,  Schou- 
ler,  Wills,  §  265.  Furthermore,  we  may  say  that,  in  the  absence  of 
all  extrinsic  evidence  as  to  the  intention  of  Longer,  we  think  the  trial 
court  allowed  undue  force  and  weight  to  the  word  "agree,"  as  used  in 
this  instrument.  If  this  was  an  agreement  only,  it  was  unilateral,  and 
there  is  no  pretense  of  consideration.  To  construe  the  instrument  as 
a  naked  promise  to  make  a  will  is  to  let  go  for  naught  all  the  formali- 
ties of  its  execution.  Looking  to  the  writing  alone,  and  it  appears  that 
the  words  "I  agree  to  will"  mean  nothing  else  than  "I  do  will."  The 


NO   PARTICULAR   FORM   REQUIRED 

words  "I  agree  to  sell,"  in  a  contract,  have  been  held  to  import  a  pres- 
ent sale.  Ives  v.  Hazard,  4  R.  I.  16,  67  Am.  Dec.  500.  See,  also, 
Martin  v.  Adams,  104  Mass.  262;  Baldwin  v.  Humphrey,  44  N.  Y. 
609.  But,  aside  from  these  considerations,  the  finding  of  the  court 
that  this  instrument  was  intended  to  create  a  testamentary  gift  is  con- 
trolling. Schouler,  Wills,  §  272.  To  ascertain  this  intent,  when  the 
terms  of  the  writing  are  not  clear,  collateral  evidence  may  be  received, 
as  was  done  in  this  case.  Schouler,  Wills,  §  273.  When  the  animus 
testandi  is  established,  the  character  of  the  instrument  is  fixed.  It  is 
a  will. 

What  construction  should  be  given  certain  provisions  of  this  instru- 
ment, in  view  of  the  court's  finding  that  Jim  Longer,  named  in  the 
will,  is  identical  with  the  testator,  is  a  matter  upon  which  we  are  not 
called  on  to  express  an  opinion.  An  instrument  may  be  entitled  to 
probate,  though  some  of  its  terms  are  meaningless.  Reversed. 


In  re  MERRYFIELD'S  ESTATE. 
(Supreme  Court  of  California,  1914.    167  Cal.  729,  141  Pac.  259.) 

Application  by  Gertrude  E.  Fox  and  another  for  the  probate  of  the 
will  of  Emily  M.  Merryfield,  deceased,  contested  by  Clarence  J.  Merry- 
field  and  another.  Judgment  for  proponents,  and  contestants  appeal. 

HKNSHAW,  J.  Emily  M.  Merryfield,  a  widow,  died  in  1913  leaving 
surviving  her  five  sons  and  two  daughters.  For  several  years  before 
her  death  she  had  been  so  blind  that  she  could  not  recognize  objects, 
and  could  only  distinguish  between  light  and  dark.  She  was  68  years 
of  age.  On  the  day  before  her  death  her  daughter  Gertrude  E.  Fox 
found  three  sheets  of  paper  folded  together  and  placed  in  a  locked 
drawer.  In  this  drawer  were  other  papers.  Each  of  these  three  sheets 
contained  writing  entirely  in  the  hand  of  the  deceased.  The  three  sheets 
were  of  the  same  size  and  character  of  paper,  and  apparently  were  torn 
from  the  same  writing  pad. 

The  first  of  these  sheets  contained  the  following: 

"Riverside,  Cal.  I  write  to  certify  that  I  am  right  and  will  name  the 
property  I  have  in  my  house  which  I  give  my  girls,  Gertrude  Fox  and 
Ethel  Schofield.  I  give  and  bequeath  all  I  have,  all  my  property,  my 
house  and  lot  and  things  in  the  house." 

The  second  sheet  contained  this : 

"I  want  to  have  all  my  things  in  the  house,  the  boys  have  got  more 
than  the  girls  and  they  won't  get  any  more ;  this  is  my  last  will  and  is 
as  I  want  it  to  be. 

"Signed  this of  1911,  by  Emily  Merryfield." 


10  FORM   OF  WILLS 

On  the  third  sheet  was  written : 

"Riverside,  Cal. 

"This  is  my  will.  My  mind  is  good  and  I  want  my  girls,  Gertrude 
and  Ethel,  to  have  all  my  belongings,  my  house  and  lot  and  the  things 
in  the  house. 

"This  eleventh  day  of  December,  1911. 

"Mrs.  Emily  Merryfield." 

These  three  sheets  of  paper  were  offered  for  probate  as  being  the 
last  will  and  testament  of  the  deceased.  Certain  of  the  sons  insti- 
tuted a  contest  to  the  admission  in  probate  of  the  three  sheets,  con- 
tending that  the  writing  upon  the  third  sheet  alone  constituted  the  will 
of  the  deceased.  There  was  to  the  trial  court  presented  no  other 
ground  of  contest.  That  court  after  a  hearing  determined  that  the 
contents  of  the  three  sheets  constituted  one  instrument,  which  was  the 
last  will  and  testament  of  the  deceased.  The  soundness  of  this  deter- 
mination is  here  presented  for  review. 

Appellants'  position  is  that  the  first  two  sheets  constituted  an  imper- 
fectly executed  olographic  will ;  that  the  third  sheet  contains  a  perfect 
olographic  will ;  that  the  evidence  is  not  sufficient  to  support  the  court's 
finding  that  the  first  two  sheets  are  to  be  read  and  construed  as  a  part 
of  a  harmonious  homogeneous  olographic  will ;  that  the  evidence  is  not 
sufficient  to  establish  this  relationship  between  the  three  sheets  which 
the  court  found  to  exist,  and  that  therefore  the  first  two  sheets  must  be 
denied  probate. 

The  case  thus  presented  is  not  that  contemplated  by  section  1320  of 
the  Civil  Code,  by  which  it  is  declared  that  "several  testamentary  in- 
struments executed  by  the  same  testator  are  to  be  taken  and  construed 
together  as  one  instrument,"  nor  is  it  the  case  of  the  incorporation  into 
a  will  of  extrinsic  writings  where  the  evidence  identifying  such  writings 
must  be  clear  to  justify  such  incorporation.  Shillaber  Estate,  74  Cal. 
144,  15  Pac.  453,  5  Am.  St.  Rep.  433;  In  re  Young,  123  Cal.  337,  55 
Pac.  1011.  The  case  actually  presented  may  be  stated  by  the  question 
whether  the  evidence  upholds  the  finding  of  the  court  that  the  three 
sheets  of  paper  form  a  single  continuous  instrument  constituting  the 
last  will  of  the  deceased.  That  the  evidence  is  sufficient  for  this  we 
think  no  doubt  can  be  entertained.  There  was  no  other  writing  upon 
the  sheets  saving  that  of  the  testatrix.  The  sheets  themselves  were 
arranged  and  folded  together  in  proper  sequence.  If  testatrix  had  be- 
lieved that  the  last  page  alone  was  her  will,  it  is  not  probable  that  she 
would  have  preserved  the  first  and  second  pages  with  such  care,  and 
would  so  have  enfolded  them  as  to  evidence  her  belief  that  they  were  a 
part  of  and  incorporated  in  her  will.  The  omission  of  words  and  the 
repetition  of  ideas  are  not  unusual  in  the  writings  of  a  person  of  ad- 
vanced years  and  unskilled  in  the  art  of  exact  legal  expression.  The 
fact  that  the  will  is  written  upon  more  than  one  sheet  of  paper  is 


NO   PARTICULAR   FORM    REQUIRED  11 

immaterial.  Estate  of  Taylor,  126  Cal.  97,  58  Pac.  454.  Nor  is  it 
necessary  to  support  the  finding  that  the  several  detached  pieces  of 
paper  constituted  one  instrument  that  these  sheets  should  be  fastened 
together  by  mechanical  or  other  device.  40  Cyc.  1093 ;  Sellards  v. 
Kirby,  82  Kan.  291,  108  Pac.  73,  28  L,  R.  A.  (N.  S.)  270,  136  Am.  St. 
Rep.  110,  20  Ann.  Cas.  214;  Schillinger  v.  Bawek,  135  Iowa,  131,  112 
N.  W.  210;  Murrell  v.  Barnwall,  110  Ala.  668,  20  South.  1021. 

It  is  concluded  herefrom  that  the  finding  of  the  court  is  sustained 
by  adequate  evidence,  and  the  order  and  decree  appealed  from  are 
therefore  affirmed. 

We  concur:   MELVIN,  J. ;   LORIGAN,  J. 

In  re  KNOX'S  ESTATE. 
Appeal  of  KNOX. 

(Supreme  Court  of  Pennsylvania,  1890.    131  Pa.  220,  18  Atl.  1021,  6  L.  R.  A. 
353,  17  Am.  St  Rep.  798.) 

Appeal  from  orphans'  court,  Allegheny  county. 

James  A.  Knox  appealed  to  the  orphans'  court  of  Allegheny  county 
from  an  order  admitting  to  probate  a  certain  writing  as  the  will  of  his 
wife,  Harriet  S.  Knox,  deceased.  The  instrument  was  written  in  lead- 
pencil,  and  was  as  follows :  "A  few  little  things  I  would  love  to  have 
done:  Always  keep  Vicie  and  Pet,  if  possible.  Mama  to  have  every- 
thing she  wants,  with  a  few  exceptions  of  remembrances.  Please  let 
sister  have  my  house  rent  as  long  as  she  may  live ;  then  may  my  little 
namesake  have  it.  *  *  *  Take  good  care  of  Vicie  'somebody'  as 
long  as  she  lives.  Saturday.  Harriet."  The  writing  was  made  after 
the  passage  of  Act  Pa.  June  3,  1887,  known  as  the  "Married  Persons' 
Property  Act,"  (P.  L.  333,)  providing  that  "a  married  woman  may  dis- 
pose of  her  property,  real  and  personal,  by  last  will  and  testament  in 
writing,  signed  by  her,  or  manifested  by  her  mark  or  cross,  made  by  her 
at  the  end  thereof,  in  the  same  manner  as  if  she  were  unmarried."  The 
appeal  was  dismissed,  and  petitioner  appeals. 

MITCHELL,  J.2  The  writing  in  question  is  clearly  testamentary.  Al- 
though it  does  not  on  its  face  purport  to  be  a  will,  and  in  form  is 
not  a  command,  but  a  request,  addressed  to  no  special  person  by  name, 
but  plainly  to  those  who  should  have  the  possession  or  control  of  her 
property,  it  has  the  essential  element  of  being  a  disposition  of  property 
to  take  effect  after  death,  and  the  precatory  form  is  therefore  imma- 
terial. Fosselman  v.  Elder,  98  Pa.  159.  It  being  undisputed  that  the 
paper  is  in  the  handwriting  of  the  decedent,  and  being  testamentary  in 
character,  the  only  question  left  upon  its  validity  as  a  will  is  the  suffi- 
ciency of  its  execution  by  the  signature  "Harriet."  *  *  * 

Judgment  affirmed. 


Part  only  of  the  opinion  is  given. 


12  FORM  OF  WILLS 


II.  Duplicate  Wills* 

GROSSMAN  v.  GROSSMAN. 
(Court  of  Appeals  of  New  York,  1884.    95  N.  T.  145.) 

EARL,  J.4  Henry  Grossman,  the  testator,  died  in  January,  1881, 
leaving  a  will  executed  in  duplicate.  The  duplicates  were  executed  at 
the  same  time,  with  the  same  subscribing  witnesses,  and  contained  the 
same  provisions,  and  the  same  language.  One  of  the  duplicates  was 
produced  before  the  surrogate,  and  was  duly  proved  and  admitted  to 
probate,  January  28,  1881.  Within  a  year  thereafter  several  of  the 
heirs  and  next  of  kin  of  the  testator  filed  allegations  against  the  validity 
of  the  will,  the  competency  of  its  proof  and  the  mental  capacity  of  the 
testator,  under  the  provisions  of  the  Code  of  Civil  Procedure.  §§  2647 
to  2653.  On  the  trial  of  these  allegations  before  the  surrogate,  the 
proponents  produced  their  testimony  in  support  of  the  will  and  rested. 
Among  their  proofs  was  the  duplicate  copy  of  the  will  executed  by  the 
testator,  which  they  offered  in  evidence  for  the  purpose  of  showing 
that  it  was  identical  with  the  will  proved,  and  that  there  had  been  no 
revocation  of  the  will,  but  not  for  the  purpose  of  having  it  admitted 
to  probate  as  a  will.  The  counsel  for  the  contestants  objected  to  the 
proof  on  the  ground  that  the  alleged  duplicate  was  not  admissible  in 
evidence  for  the  purposes  specified,  or  for  either  of  them,  and  also 
upon  the  ground  that  it  was  inadmissible  in  evidence  for  any  purpose 
whatever.  The  surrogate  admitted  the  will  in  evidence  for  the  limited 
purpose  for  which  it  was  offered,  but  not,  as  he  stated,  "with  the  idea 
that  it  can  be  admitted  to  probate  in  this  proceeding,  that  question  being 
reserved  for  future  consideration,  if  it  be  raised."  The  counsel  for 
proponents  offered  to  file  with  the  court  the  duplicate  will,  and  the 
counsel  for  the  contestants  objected,  and  the  duplicate  was  thereupon 
put  in  evidence.  After  the  proponents  had  rested  their  case  the  con- 
testants moved  that  the  probate  of  the  will  be  revoked  on  the  ground 
"that  it  appeared  in  evidence  before  the  surrogate,  that  at  the  time  the 
paper,  admitted  to  probate  as  a  will  of  the  said  Henry  Grossman,  de- 
ceased, was  executed,  another  paper,  claimed  to  be  a  testamentary  in- 
strument, was  executed  by  him  at  one  and  the  same  time;  that  the 
said  two  testamentary  papers  were  signed  by  the  alleged  testator  at 
one  and  the  same  time,  there  having  been  no  separate  execution  of 
either  of  said  alleged  testamentary  papers,  and  that  only  a  part  of  the 
alleged  last  will  and  testament  of  Henry  Grossman,  deceased,  had  been 
admitted  to  probate."  The  motion  was  denied  by  the  surrogate,  and 
after  hearing  all  the  evidence  offered  by  the  parties  he  made  a  decree 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  8. 
*  Part  only  of  the  opinion  is  given. 


DUPLICATE  WILLS  13 

dismissing  the  allegations  of  the  contestants  and  affirming  the  original 
probate.  The  contestants  appealed  from  his  decree  to  the  General 
Term  of  the  Supreme  Court,  where  it  was  affirmed,  and  they  then  ap- 
pealed to  this  court,  and  here  rely  upon  several  allegations  of  error 
which  will  be  noticed. 

The  contestants  claim  that,  as  these  duplicates  were  executed  at  the 
same  time  by  the  testator,  as  his  last  will  and  testament,  it  was  neces- 
sary for  the  proponents  to  offer  both  for  probate  at  the  same  time,  and 
to  have  an  adjudication  by  the  surrogate  upon  both.  It  is  undoubtedly 
true  that  where  two  testamentary  papers  are  executed  at  the  same  time, 
with  the  formalities  required  by  law,  they  must  be  taken  together  to 
constitute  the  will  of  the  testator.  If  the  two  papers  contain  different 
provisions,  the  one  making  bequests  or  devises  not  contained  in  the 
other,  then  both  must  be  proved  and  admitted  to  probate,  and  both  con- 
stitute, when  read  together,  the  will  of  the  testator,  as  if  all  the  provi- 
sions of  both  were  contained  in  one  instrument.  Matter  of  Forman's 
Will,  54  Barb.  274.  This  is  only  a  branch  of  the  general  rule  applica- 
ble to  all  written  instruments,  relating  to  the  same  transaction,  executed 
at  the  same  time,  for  the  purpose  of  expressing  the  intention  of  the 
parties  in  reference  thereto.  All  the  instruments  in  such  cases  set  forth 
the  transaction,  and  embody  the  intention  of  the  parties,  and  they  must 
always  be  read  together.  But  where  an  agreement  is  reduced  to  writ- 
ing in  duplicates,  each  being  exactly  like  the  other,  then  there  can  be 
no  reason  to  require  a  party,  in  proving  such  an  instrument,  to  produce 
both.  It  is  very  common  to  execute  leases  and  other  instruments  in 
duplicates,  each  party  having  one,  and  where  they  are  precisely  alike 
either  party  can  come  into  court  and  produce  the  duplicate  which  he 
has,  and  prove  it;  and  he  need  not  prove  or  cause  the  production  of 
the  other.  So  if  the  same  party  has  duplicate  instruments  executed 
for  his  own  benefit  and  safety,  each  duplicate  expresses  the  entire 
agreement  of  the  parties,  and  either  may  be  proved  without  the  other. 

The  same  rule  must  be  applicable  to  wills.  Where  the  duplicates  are 
exactly  alike,  each  expresses  and  contains  the  will  of  the  testator ;  and 
either  may  be  proved  and  admitted  to  probate  without  the  other. 
There  can  be  no  conceivable  reason  for  proving  both  or  for  having  both 
admitted  to  probate ;  and  no  authority  in  this  country  or  England  has 
been  found  which  holds  that  in  such  a  case  it  is  necessary  that  both 
should  be  proved  or  admitted  to  probate.  The  proponents  of  either 
duplicate  can  undoubtedly  be  required  to  produce  the  other,  so  that 
both  may  be  before  the  court  for  inspection,  that  it  may  be  seen 
whether  they  are  precisely  alike,  or  whether  there  has  been  any  revo- 
cation. But  when  it  appears  that  they  are  alike,  and  that  there  has 
been  no  revocation,  then  it  would  be  quite  an  idle  ceremony  to  prove 
both,  or  to  admit  both  to  probate.  Numerous  cases  were  cited  by  the 
learned  counsel  for  the  contestants,  holding  that  where  a  will  is  exe- 
cuted in  duplicates  a  revocation  of  one  according  to  law  animo  revo- 
candi  is  a  revocation  of  both.  As  each  contains  the  will  of  the  testator. 


14  FORM  OF  WILLS 

a  revocation  of  either  is  a  revocation  of  his  will,  and  thus  revokes  both. 
The  following  are  some  of  the  authorities  cited  :  1  Wms.  Ex'rs,  154;  1 
Redf .  Wills,  305 ;  2  Greenl.  Ev.,  §  682 ;  1  Jarm.  Wills,  296,  297 ;  Hub- 
bard  v.  Alexander,  3  Ch.  Div.  738 ;  Doe  v.  Strickland,  8  C.  B.  724 ; 
O'Neall  v.  Farr,  1  Rich.  (S.  C.)  80.  None  of  the  cases  give  any  counte- 
nance to  the  idea  that  both  duplicates  must  be  admitted  to  probate.  It 
does  not  take  the  two  duplicates  to  express  the  will  of  the  testator,  but 
his  will  entire  is  found  in  each. 

In  this  case,  before  the  surrogate,  all  was  done  which  is  required  by 
any  rule  of  law  or  even  of  prudence.  The  duplicate  not  probated  was 
produced,  proved  and  filed  with  the  surrogate.  In  Odenwaelder  v. 
Schorr,  8  Mo.  App.  458,  where  a  will  was  executed  in  duplicates  at 
the  same  time,  just  as  this  was,  it  was  held  that  both  were  the  same 
will,  not  that  it  took  both  papers  to  make  the  will  of  the  testator,  and 
that  it  was  immaterial  which  was  proved.  The  judge  writing  the  opin- 
ion said:  "Both  papers,  if  executed  at  all,  were  executed  at  the  same 
time,  with  the  same  intention,  and  are  word  for  word  the  same.  It  is 
therefore  immaterial,  which  is  proved.  They  are  the  same,  and  each  of 
them,  if  a  will  at  all,  is  the  last  will  of  the  deceased."  *  *  *  Judg- 
ment affirmed. 


III.  Incorporation  by  Reference  ' 


NEWTON  v.  SEAMAN'S  FRIEND  SOCIETY. 

(Supreme   Judicial   Court   of   Massachusetts,   1881.     130   Mass.    91,    39   Am. 

Rep.   433.) 

GRAY,  C.  J.8  If  a  will,  executed  and  witnessed  as  required  by  stat- 
ute, incorporates  in  itself  by  reference  any  document  or  paper  not  so 
executed  and  witnessed,  whether  the  paper  referred  to  be  in  the  form 
of  a  will  or  codicil,  or  of  a  deed  or  indenture,  or  of  a  mere  list  or 
memorandum,  the  paper  so  referred  to,  if  it  was  in  existence  at  the 
time  of  the  execution  of  the  will,  and  is  identified  by  clear  and  satis- 
factory proof  as  the  paper  referred  to  therein,  takes  effect  as  part  of 
the  will,  and  should  be  admitted  to  probate  as  such.  Allen  v.  Mad- 
dock,  1 1  Moore,  P.  C.  427 ;  Singleton  v.  Tomlinson,  3  App.  Cas.  404 ; 
Jackson  v.  Babcock,  12  Johns.  (N.  Y.)  389;  Tonnele  v.  Hall,  4  N. 
Y.  140;  Chambers  v.  McDaniel,  28  N.  C.  226;  Beall  v.  Cunningham, 
3  B.  Mon.  (Ky.)  390,  39  Am.  Dec.  469;  Harvy  v.  Chouteau,  14  Mo. 
S87,  55  Am.  Dec.  120.  *  *  * 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  10,  11. 
•  Tbe  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


INCORPORATION  BY  REFERENCE  15 

In  the  present  case,  the  testator  by  the  third  codicil  expressly  re- 
vokes that  part  of  the  will  which  gives  directions  for  the  payment  of 
legacies,  and  orders  and  directs  his  executors  to  pay  the  legacies  men- 
tioned in  his  will  and  codicils  as  nearly  as  may  be  according  to  the 
directions  written  in  a  book  by  Melvin  W.  Pierce,  signed  by  the  testa- 
tor and  witnessed  by  Pierce.  The  book  admitted  to  probate  contains 
such  directions,  so  written,  signed  and  witnessed,  specifying  the  prop- 
erty out  of  which  each  legacy  is  to  be  paid ;  and,  with  the  exception  of 
two  memoranda  in  the  margin,  which  were  excluded  from  the  pro- 
bate, is  agreed  by  the  parties  to  have  been  in  its  present  form  at 
the  time  of  the  making  of  the  third  codicil.  There  is  no  doubt,  there- 
fore, of  the  identity  of  the  document  referred  to,  nor  of  its  existence 
at  the  date  of  the  execution  of  the  testamentary  instrument  which 
refers  to  it. 

The  fact  that  the  book  was  in  the  possession  and  control  of  the  tes- 
tator might  require  a  close  scrutiny  of  the  evidence  that  it  remained 
in  the  same  condition  as  at  the  time  of  the  execution  of  the  codicil,  if 
there  were  any  controversy  upon  that  point,  but  is  otherwise  imma- 
terial. It  is  not  necessary  that  every  portion  of  a  will  should  be  veri- 
fied by  the  signature  of  the  testator  and  the  attestation  of  the  witness- 
es; it  is  sufficient  that  the  different  sheets  or  papers  should  clearly 
appear  upon  their  face,  or  by  extrinsic  evidence,  to  have  formed  part 
of  the  will  at  the  time  of  its  execution  and  attestation.  Ela  v.  Ed- 
wards, 16  Gray  (Mass.)  91,  99.  Marsh  v.  Marsh,  1  Sw.  &  Tr.  528. 

The  document  in  question,  which  was  in  law  part  of  the  will,  hav- 
ing by  mistake  not  been  presented  for  probate  with  the  will,  the  pro- 
bate court  had,  and  rightly  exercised,  the  power  to  admit  it  to  probate 
afterwards.  Waters  v.  Stickney,  12  Allen  (Mass.)  1,  90  Am.  Dec. 
122;  Musser  v.  Curry,  3  Wash.  C.  C.  481,  Fed.  Cas.  No.  9,973.  De- 
cree affirmed. 


Appeal  of  BRYAN. 

(Supreme  Court  of  Errors  of  Connecticut,  1904.     77  Conn.  240,  58  Atl.  748, 
68  L.  R.  A.  353,  107  Am.  St.  Rep.  34,  1  Ann.  Cas.  393.) 

TORRANCD,  C.  J.  The  court  of  probate  for  the  district  of  New  Ha- 
ven approved  and  admitted  to  probate  a  certain  writing  as  the  last 
will  of  Philo  S.  Bennett,  deceased.  That  will  contained,  as  its  twelfth 
crause,  the  following:  "I  give  and  bequeath  unto  my  wife,  Grace 
Imogene  Bennett,  the  sum  of  fifty  thousand  dollars  ($50,000)  in  trust, 
however,  for  the  purposes  set  forth  in  a  sealed  letter  which  will  be 
found  with  this  will."  At  the  time  this  will  was  offered  for  probate, 
there  were  also  offered  for  probate,  as  a  part  of  it,  under  the  twelfth 
clause  of  the  will,  two  writings  hereinafter  referred  to  as  Exhibits  B 
and  C.  The  court  of  probate  refused  to  approve  or  admit  to  probate 
as  parts  of  said  will  each  and  both  of  these  exhibits,  and  from  that 


16  FORM  OF  WILLS 

part  of  its  decree  an  appeal  was  taken  to  the  superior  court  by  Wil- 
liam J.  Bryan,  individually  and  as  trustee  under  the  will,  as  he  claims 
it  to  be.  The  will  admitted  to  probate  is,  in  the  record,  called  "Ex- 
hibit A,"  while  Exhibits  B  and  C  are  letters  which,  as  the  appellant 
claims,  constitute  a  part  of  the  will. 

The  will  was  executed  in  New  York,  and  is  dated  the  22d  day  of 
May,  1900. 

Exhibit  B  is  a  letter  from  the  testator  to  his  wife,  of  which  the  fol- 
lowing is  a  copy : 

"New  York,  5/22/1900. 

"My  dear  Wife:  In  my  will  just  executed  I  have  bequeathed  to 
you  seventy-five  thousand  dollars  (75,000)  and  the  Bridgeport  houses, 
and  have  in  addition  to  this  made  you  the  residuary  legatee  of  a  sum 
which  will  amount  to  twenty-five  thousand  more.  This  will  give  you 
a  larger  income  than  you  can  spend  while  you  live,  and  will  enable 
you  to  make  bountiful  provision  for  those  you  desire  to  remember  in 
your  will.  In  my  will  you  will  find  the  following  provisions : 

"I  give  and  bequeath  unto  my  wife,  Grace  Imogene  Bennett,  the 
sum  of  fifty  thousand  dollars  (50,000)  in  trust,  however,  for  the  pur- 
poses set  forth  in  a  sealed  letter  which  will  be  found  with  this  will. 

"It  is  my  desire  that  fifty  thousand  dollars  conveyed  to  you  in  trust 
by  this  provision  shall  be  by  you  paid  to  William  Jennings  Bryan,  of 
Lincoln,  Nebr.,  or  to  his  heirs  if  I  survive  him.  I  am  earnestly  de- 
voted to  the  political  principles  which  Mr.  Bryan  advocates,  and  be- 
lieve the  welfare  of  the  nation  depends  upon  the  triumph  of  those 
principles.  As  I  am  not  as  able  as  he  to  defend  those  principles  with 
tongue  and  pen,  and  as  his  political  work  prevents  the  application  of  his 
time  and  talents  to  money  making,  I  consider  it  a  duty,  as  I  find  it  a 
pleasure,  to  make  this  provision  for  his  financial  aid,  so  that  he  may  be 
more  free  to  devote  himself  to  his  chosen  field  of  labor.  If  for  any 
reason  he  is  unwilling  to  receive  this  sum  for  himself,  it  is  my  will 
that  he  shall  distribute  the  said  sum  of  fifty  thousand  dollars  accord- 
ing to  his  judgment  among  educational  and  charitable  institutions.  I 
have  sent  a  duplicate  of  this  letter  to  Mr.  Bryan,  and  it  is  my  desire 
that  no  one  excepting  you  and  Mr.  Bryan  himself  shall  know  of  this 
letter  and  bequest.  For  this  reason  I  place  this  letter  in  a  sealed  en- 
velope, and  direct  that  it  shall  be  opened  only  by  you,  and  read  by  you 
alone.  With  love  and  kisses,  P.  S.  Bennett." 

Exhibit  C  was  a  typewritten  duplicate  of  Exhibit  B,  except  that  the 
words,  "with  love  and  kisses,  P.  S.  Bennett,"  at  the  end  of  Exhibit  B, 
were  not  contained  in  Exhibit  C,  nor  was  Exhibit  C  signed  by  the  tes- 
tator. Respecting  these  exhibits,  the  appellant,  in  the  superior  court, 
offered  evidence  tending  to  prove  the  following  facts:  That  about  a 
week  or  10  days  before  the  date  of  the  will,  at  the  city  of  Lincoln, 
Neb.,  the  testator  and  Mr.  Bryan  and  his  wife  prepared  a  blank  draft 
form  of  the  will  which  was  subsequently  filled  out  and  executed,  and 
that  Exhibit  C  was  then  also  prepared  as  a  blank  draft  form  from 


INCORPORATION  BY  REFERENCE  17 

which  Exhibit  B  was  to  be,  and  was  subsequently,  drawn;  that  Ex- 
hibit B  was  in  the  handwriting  of  the  testator,  and  was  by  him  placed  in 
&  sealed  envelope  bearing  the  following  indorsement  in  his  handwrit- 
ing: "Mrs.  P.  S.  Bennett.  To  be  read  only  by  Mrs.  Bennett  and  by 
her  alone,  after  my  death.  P.  S.  Bennett  [Seal.]  ;"  that  the  testa- 
tor, on  the  day  after  the  date  of  the  will,  placed  said  will  and  said 
envelope  containing  Exhibit  B  in  his  box  in  a  vault  in  the  Wool  Ex- 
change building,  in  New  York  City,  where  they  remained  as  he  put 
them  until  after  his  death,  the  will  being  "separate  from  said  letter 
and  said  envelope" ;  and  that  Exhibit  C,  from  the  time  it  was  drawn 
up,  remained  in  Bennett's  custody  till  his  death,  and  was  found  soon 
after  that  event  among  his  private  papers,  in  an  envelope  subscribed 
in  Bennett's  handwriting  as  follows :  "Copy  of  letter  in  Safe  Deposit 
Company  vault  Wool  Exchange."  The  appellant  then  offered  Exhibit 
C  in  evidence  as  part  of  the  will,  claiming  that  it  was  the  original  and 
equivalent  of  the  paper  Exhibit  B,  "and  that  it  was  substantially  the 
sealed  letter  referred  to  in  paragraph  12  of  the  will."  The  court  ex- 
cluded the  evidence.  The  appellant  thereupon  offered  in  evidence,  as 
part  of  the  will,  the  letter  Exhibit  B,  and  the  court  excluded  it.  The 
appellant  also  offered  parol  evidence  tending  to  prove  that  Exhibit  B 
was  the  instrument  to  which  reference  was  made  in  clause  12  of  the 
will,  but  the  court  excluded  such  evidence.  Subsequently  the  jury, 
under  the  direction  of  the  court,  rendered  a  verdict  to  the  effect  that 
Exhibits  B  and  C  "are  not,  either  separately  or  together,  a  part  of  the 
last  will  of  said  Philo  S.  Bennett,  deceased,"  and  judgment  followed  in 
accordance  with  the  verdict. 

From  the  opinion  of  the  trial  court,  which  is  made  part  of  the  rec- 
ord, the  rulings  of  the  court  seem  to  have  been  based  upon  several 
distinct  grounds,  which  may  be  briefly  indicated  in  this  way :  ( 1)  Ap- 
parently upon  the  ground  that  the  doctrine  of  incorporation  by  ref- 
erence does  not  prevail  as  to  wills,  under  our  statute  relating  to  their 
making  and  execution ;  (2)  that,  even  if  that  doctrine  prevails  here,  no 
paper  in  the  present  will  is  by  reference  made  a  part  of  it,  according 
to  the  rules  universally  applied  in  jurisdictions  where  the  above  doc- 
trine prevails;  and  (3)  that  the  letter  Exhibit  B  shows  on  its  face 
an  intent  on  the  part  of  the  testator  that  it  should  not  constitute  a 
part  of  his  will.  As  we  think  the  rulings  of  the  court  below  can  be 
vindicated  upon  the  second  of  the  grounds  above  mentioned,  it  will  be 
unnecessary  to  consider  the  other  two  grounds;  but,  in  thus  resting 
our  decision  upon  the  second  ground,  we  do  not  mean  to  intimate  that 
it  could  or  could  not  be  made  to  rest  upon  the  first  or  third. 

Before  considering  the  second  ground,  a  word  or  two  regarding  the 
first  ground  may  not  be  out  of  place.  Under  the  rule  prevailing  in 
England,  an  unattested  document  may,  by  reference  in  a  will,  under 
certain  conditions  and  limitations,  become  by  reference  incorporated 
in  the  will  as  a  part  of  it,  and  that,  too,  whether  the  document  referred 
DUNM.CAS.WILLS — 2 


18  FORM  OF   WILLS 

to  is  or  is  not  a  dispositive  one;  and  one  of  the  leading  cases  upon 
this  subject  is  that  of  Allen  v.  Maddock,  11  Moore's  P.  C.  C.  427, 
decided  in  1858.  This  is  known  as  the  "doctrine  of  incorporation  by 
reference,"  and  the  principle  upon  which  it  rests  does  not  differ  essen- 
tially from  that  which  is  applied  in  incorporating  unsigned  writings 
in  a  signed  instrument,  so  as  to  constitute  a  memorandum  in  writing 
under  the  statute  of  frauds.  The  English  rule  appears  to  prevail  in 
many  of  our  sister  states,  but  the  question  whether  it  prevails  in  this 
state,  and,  if  so,  with  what  limitations  and  under  what  conditions,  was 
left  undetermined  in  Phelps  v.  Robbins,  40  Conn.  250,  and  has  never 
been  passed  upon  since.  In  the  present  case  we  find  it  unnecessary  to 
decide  those  questions,  but,  for  the  purposes  of  the  argument,  we  shall 
assume,  without  deciding,  that  the  doctrine  of  incorporation  by  refer- 
ence in  a  will  prevails  here.  Two  of  the  conditions  without  the  ex- 
istence of  which  the  English  rule  will  not  be  applied  are  concisely,  but 
we  think  correctly,  stated  in  Phelps  v.  Robbins,  40  Conn.  250,  as  fol- 
lows :  "First,  the  paper  must  be  in  existence  at  the  time  of  the  ex- 
ecution of  the  will ;  and,  secondly,  the  description  must  not  be  so 
vague  as  to  be  incapable  of  being  applied  to  any  instrument  in  particu- 
lar, but  must  describe  the  instrument  intended  in  clear  and  definite 
terms."  In  a  California  case  upon  this  subject  this  language  is  used : 
"But  before  such  an  extrinsic  document  may  be  so  incorporated,  the 
description  of  it  in  the  will  itself  must  be  so  clear,  explicit,  and  unam- 
biguous as  to  leave  its  identity  free  from  doubt."  Estate  of  Young, 
123  Cal.  342,  55  Pac.  1012.  In  an  important  and  well-considered  Eng- 
lish case,  decided  in  1902,  the  court  uses  this  language  upon  this  sub- 
ject: "But  it  is  clear  that,  in  order  that  the  informal  document  should 
be  incorporated  in  the  validly  executed  document,  the  latter  must  refer 
to  the  former  as  a  writing  existing — that  is,  at  the  time  of  the  execu- 
tion— in  such  terms  that  it  may  be  ascertained."  "The  document 
which  it  is  sought  to  incorporate  must  be  existing  at  the  time  of  the 
execution  of  the  document  into  which  it  is  to  be  incorporated,  and 
there  must  be  a  reference  in  the  properly  executed  document  to  the  in- 
formal document  as  an  existing  one,  and  not  as  a  future  document." 
In  the  Goods  of  Smart,  L.  R.  P.  D.  238.  Tested  by  the  rules  as  thus 
laid  down  in  the  cases,  above  cited,  and  in  numerous  others  that  might 
be  cited,  the  will  in  the  present  case  fails  to  comply  with  the  required 
conditions  under  which  incorporation  by  reference  can  take  place  in 
the  case  of  wills.  In  clause  12  of  the  will  in  question  here,  a  large 
sum  of  money  is  given  to  Mrs.  Bennett,  "in  trust,  however,  for  the 
purposes  set  forth  in  a  sealed  letter  which  will  be  found  with  this 
will."  There  is  not  in  the  language  quoted,  nor  anywhere  else  in  the 
will,  any  clear,  explicit,  unambiguous  reference  to  any  specific  docu- 
ment as  one  existing  and  known  to  the  testator  at  the  time  his  will  was 
executed.  Any  sealed  letter,  or  any  number  of  them,  setting  forth 
the  purposes  of  the  trust,  made  by  anybody  at  any  time  after  the  will 
was  executed,  and  "found  with  the  will,"  would  each  fully  and  ac- 


INCORPORATION    BY   REI'ERENCE  19 

curately  answer  the  reference;  and,  if  we  assume  that  the  reference 
calls  for  a  letter  from  the  testator,  it  is  answered  by  such  a  letter  or 
letters  made  at  any  time  after  the  will  was  drawn.  The  reference  is 
"so  vague  as  to  be  incapable  of  being  applied  to  any  instrument  in 
particular"  as  a  document  existing  at  the  time  of  the  will.  "The  vice 
is  that  no  particular  paper  is  referred  to."  Phelps  v.  Robbins,  40 
Conn.  273.  Such  a  reference  as  is  made  in  the  present  will  is  in  fact, 
as  well  as  in  law,  no  reference  at  all.  Certainly  it  is  not  such  a  refer- 
ence as  the  rules,  under  the  doctrine  of  incorporation  by  reference, 
require  in  the  case  of  wills.  A  reference  so  defective  as  the  one  here 
in  question  cannot  be  helped  out  by  what  is  called  "parol  evidence,"  for 
to  allow  such  evidence  to  be  used  for  such  purpose  would  be  practical- 
ly to  nullify  the  wise  provisions  of  the  law  relating  to  the  making  and 
execution  of  wills. 

We  know  of  no  case,  and  in  the  able  and  helpful  briefs  filed  in  this 
case  have  been  referred  to  none,  where  a  reference  like  the  one  here  in 
question  has  been  held  to  incorporate  into  the  will  some  extrinsic  doc- 
ument. Assuming,  then,  without  deciding,  that  the  doctrine  of  in- 
corporation prevails  in  this  state,  as  claimed  by  the  appellant,  we  are 
still  of  the  opinion  that  the  rulings  of  which  he  complains  were  correct. 

There  is  no  error.    The  other  Judges  concurred. 


FORM  OF   WILLS 


FORM    OF    WILLS    (Continued)— NUNCUPATIVE— HOLO- 
GRAPHIC—CONDITIONAL  WILLS 

I.  Necessity  for  Testamentary  Intent  in  Nuncupative  Wills  l 


In  re  MALE'S  WILL, 

(Prerogative  Court  of  New  Jersey,  1892.    49  N.  J.  Eq.  266,  24  Atl.  370.) 

McGiLL,  Ordinary.2  Job  Male  died,  a  childless  widower,  in  his  resi- 
dence, at  Plainfield,  where  he  had  lived  for  several  years,  on  the  night 
of  the  29th  of  January,  1891,  aged  about  82  years.  He  left  an  estate 
which  is  estimated  to  be  worth  more  than  half  a  million  dollars,  of 
which  $60,000  is  in  personalty,  the  remainder  being  in  realty. 

The  matter  offered  for  probate  as  his  nuncupative  will  was  made  a 
little  more  than  half  an  hour  before  his  death.  Early  in  the  evening 
his  attending  physician,  Thomas  S.  Davis,  deeming  him  to  be  in  a  criti- 
cal condition  of  health,  called  Dr.  George  W.  Endicott  in  consultation. 
Almost  immediately  the  two  physicians  concluded  that  Mr.  Male's 
life  was,  at  best,  limited  to  a  few  hours,  and  they  so  advised  the  in- 
mates  of  the  house.  One  of  the  proponents,  Job  Male,  Jr.,  a  nephew 
of  the  decedent,  thereupon  suggested  that  his  uncle  had  previously  ex- 
pressed to  him  a  desire  to  make  a  will,  and  Dr.  Endicott  at  once  pro- 
ceeded to  the  residence  of  Craig  A.  Marsh,  who  had  been  Mr.  Male's 
legal  adviser  in  several  matters,  and  called  him  to  Mr.  Male's  bedside. 
Mr.  Marsh,  responding  to  the  summons,  reached  Mr.  Male's  shortly 
after  9  o'clock.  Entering  the  bedchamber,  he  approached  the  bedside, 
and  asked  Mr.  Male  if  he  recognized  him,  to  which  Mr.  Male  replied, 
"Yes,  this  is  Mr.  Marsh."  There  were  then  present  in  the  room  the 
two  physicians;  Job  Male,  Jr.,  the  nephew;  Augustus  C.  Baldwin,  a 
neighbor;  Sarah  Stout,  an  old  lady,  the  sister  of  Mr.  Male's  deceased 
wife,  who  kept  house  for  Mr.  Male;  Gertrude  A.  Fenno,  a  niece  of 
Mr.  Male,  and  her  husband,  one  of  the  proponents. 

After  expressing  sympathy  with  the  sick  man,  Mr.  Marsh  said  that 
he  understood  that  he  (Mr.  Male)  desired  to  make  a  will,  and  that  he 
had  sent  for  him  (Marsh)  to  "attend  to  it,"  as  one  of  the  witnesses  tes- 
tifies, or  "to  draw  it,"  as  two  other  of  the  witnesses  have  testified. 
To  whatever  was  said  Mr.  Male  replied  in  the  affirmative.  Then  Mr. 
Marsh  produced  paper  and  pencil,  and  sat  down  at  the  bedside.  He 
first  asked  Mr.  Male  how  he  (Male)  desired  his  property  to  go,  to  which 
Male  replied  that  he  desired  his  brothers'  children  to  share  it  equally, 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  12,  13. 
«  Part  only  of  the  opinion  is  given. 


TESTAMENTARY  INTENT  NECESSARY  IN  NUNCUPATIVE  WILLS  21 

but,  first,  that  he  wished  to  give  his  Park  avenue  house  to  the  Plain- 
field  Public  Library.  Mr.  Marsh  asked  the  number  of  the  house,  and 
Male  replied,  "120."  Mr.  Marsh  then  asked,  "What  else?  "  Male  re- 
plied that  he  would  give  three  lots  on  College  place  to  the  library.  Mr. 
Marsh  asked  if  he  could  give  the  numbers  of  the  lots,  and  Male  re- 
plied, "Yes;  9,  11,  and  13."  Mr.  Marsh  then  asked,  "What  else?" 
And  Mr.  Male  then  named  the  proponents  as  the  executors  of  his 
will.  Some  remark  was  then  made  in  the  room  relative  to  Mary  A. 
Gleason,  the  half-sister  of  Mr.  Male,  and  Mr.  Marsh  asked  Male  if  he 
desired  to  remember  his  half-sister,  to  which  Male  responded,  "I 
wish  to  leave  her  ten  thousand  dollars."  Mr.  Marsh  then  asked  wheth- 
er the  executors  should  be  empowered  to  sell  real  estate,  and  Mr.  Male 
replied  in  the  affirmative.  Mr.  Marsh  then,  questioning  as  to  the  time 
within  which  the  power  of  sale  should  be  exercised,  asked  if  it  should 
be  exercised  within  one  year,  to  which  Male  replied,  "No."  The  ques- 
tion was  then  repeated  as  to  whether  it  should  be  exercised  within  two 
years,  and  Mr.  Male  again  replied,  "No,"  and,  when  again  repeated  as 
to  whether  the  power  should  be  exercised  within  three  years,  he  again 
replied,  "No,"  and  added  "Make  it  five  years." 

Mr.  Male  had  been  very  liberal  to  the  Plainfield  Public  Library, 
having  erected  a  building  for  it,  and,  among  other  things,  given  it  part 
of  a  collection  of  bric-a-brac,  called  the  "Schoonmaker  Collection." 
Mr.  Baldwin  was  interested  in  the  library,  and,  at  this  point  in  the 
questioning,  he  suggested  that  Mr.  Male  should  be  asked  concerning 
the  remainder  of  the  Schoonmaker  collection.  Mr.  Marsh  then  asked 
Mr.  Male  what  he  would  do  with  the  remainder  of  that  collection  of 
bric-a-brac,  and  Male  replied  that  he  would  give  it  to  the  public  library. 
Mrs.  Stout  then  asked  if  she  must  leave  Male's  residence  without  warn- 
ing, and  Mr.  Marsh  asked  Mr.  Male  if  he  desired  to  remember  Mrs. 
Stout,  to  which  Male  answered,  "No,"  that  she  had  enough;  that  she 
should  continue  in  his  residence  without  paying  rent  as  long  as  she 
lived ;  and  that  at  her  death  the  residence  should  go  to  his  nephew  Job 
Male.  Then  Mrs.  Fenno  asked  if  she  was  to  pay  rent  for  the  house 
belonging  to  Mr.  Male  in  which  she  lived,  and  Mr.  Marsh  put  her  ques- 
tion to  Mr.  Male,  who  answered,  "No;  give  her  a  deed  for  it."  Mr. 
Marsh  then  asked  Mr.  Male  if  he  knew  the  number  of  that  house,  and 
Male  answered,  "Yes;  133."  Mr.  Marsh  then  asked  Mr.  Male  if  he 
wished  the  children  of  his  brothers  to  share  equally,  and  Male  replied, 
"Yes,"  and  then,  at  the  request  of  Mr.  Marsh,  he  named  his  five 
brothers. 

While  this  conversation  was  progressing,  Mr.  Marsh  made  a  lead 
pencil  memorandum,  of  which  the  following  is  a  copy: 

"brothers  children  to  share  equally 

9  &  11  13  College  Place  &  120  Park  Ave. 

house 
to  Library 


22  FORM   OF   WILLS 

China 

John  W.  Harrison  &  Job  Male  Geo 
W.  Fenno  Exrs 

$10,000  to  Mary  Ann  Gleason  my 
step  sister 

Power  to  sell  real  estate  after  5  yrs 
Ornats  bricabrac  all  of  Schoonmaker 

collection 
House  and  Lot  to  Job  Male,  but  Mrs 

Stout  to  have  it  for  home  as  long  as 

she  lives." 


"Mrs.  Finno  133  Bway" 

When  the  conversation  was  concluded,  Mr.  Marsh  said  to  the  two 
physicians  and  Mr.  Baldwin,  "Mr.  Male  wants  you  as  witnesses.  Is 
that  so,  Mr.  Male  ?"  to  which  Male  replied,  "Yes ;''  and  the  gentlemen 
indicated  thereupon  immediately  stepped  close  to  the  bed.  Then  Mr. 
Marsh,  guided  by  his  lead  pencil  memoranda,  recited  connectedly  the 
purposes  expressed  by  Mr.  Male,  and  asked  Male  if  that  which  he, 
Marsh,  had  said  was  "correct"  or  "was  all,"  or  if  it  was  his  "will." 
Precisely  what  language  Mr.  Marsh  used  at  this  point  is  not  agreed  to 
by  all  the  witnesses.  The  majority  of  them  testify  that  the  question 
was  whether  that  which  was  said  was  his  will;  but  they  are  contra- 
dicted by  Mrs.  Fenno  and  her  daughter,  who  insist  that  the  word  "will" 
was  not  used. 

It  is  now  insisted  that  this  acknowledgment  by  Mr.  Male  was  a  tes- 
tamentary act  sufficient  to  support  that  which  Mr.  Marsh  then  said, 
and  to  which  Mr.  Male  assented,  as  his  nuncupative  will.  Immediately 
after  this  assent  Mr.  Marsh  called  for  pen  and  ink,  and  sat  down  at  a 
table,  and  rapidly  wrote  out  a  will.  After  he  had  finished,  he  read  the 
paper  he  had  written  to  those  assembled  in  the  room,  and  asked  if  it 
accorded  with  that  which  Mr.  Male  had  said.  It  was  assented  to  as 
correct,  and  Marsh  then  added  to  it  the  formal  attestation  clause,  and, 
returning  to  the  bedside,  read  the  written  will  to  Mr.  Male,  and  placed 
a  pen  in  his  hand  to  sign  it.  During  the  writing  of  the  will  some  20 
minutes  had  elapsed,  and  Mr.  Male  had  rapidly  grown  very  feeble,  so 
that  when  the  pen  was  placed  in  his  hand  he  could  not  grasp  it.  Mr. 
Marsh  assisted  him  by  holding  and  moving  his  hand  so  as  to  trace  his 
signature  upon  the  paper.  After  the  signature  was  thus  traced,  Marsh 
asked  Male  to  declare  the  will  and  his  signature,  but  obtained  no  re- 
sponse. Mr.  Male  had  become  unconscious.  All  efforts  to  rouse  him 
were  unavailing,  and  he  died  within  a  few  minutes.  After  it  was 
ascertained  that  he  could  not  be  roused,  Mr.  Marsh  declared  that  the 
will  might  be  sustained  as  a  nuncupative  will,  and  that,  if  it  could  not 
legally  stand,  it  would  at  least  cast  a  moral  obligation  upon  the  heirs 
at  law.  *  *  * 


TESTAMENTARY  INTENT  NECESSARY  IN  NUNCUPATIVE  WILLS  23 

Against  the  admission  to  probate  of  the  matter  here  offered  as  the 
will  of  Job  Male,  it  is  urged — First,  that  when  the  words  were  uttered 
there  existed  in  Job  Male  no  intent  to  nuncupate,  that  is,  intention  of 
the  mind  that  those  very  words  should  constitute  his  will ;  and,  second, 
because  there  was  no  rogatio  testium,  bidding  persons  present  to  bear 
witness  that  those  words  were  his  will,  or  words  of  that  import.  That 
a  written  will  was  contemplated  when  Mr.  Marsh  was  sent  for,  and 
commenced  to  converse  with  Male,  there  can  be  no  doubt.  Two  of  the 
witnesses  testify  that  Mr.  Marsh  announced  to  Mr.  Male  that  he  had 
come  to  "draw"  a  will,  and  the  written  statement  of  the  transaction, 
prepared  by  Mr.  Marsh  the  next  day,  affirms  that  Marsh  had  been 
sent  for  to  "draw"  Male's  will.  After  his  remark  that  he  had  come  to 
draw  a  will,  Marsh  produced  pencil  and  paper,  and  sat  down  in  the 
attitude  of  one  prepared  to  write  instructions,  and  each  subsequent 
question  and  answer  in  the  transaction  suggested  instruction  for  a  fu- 
ture act,  rather  than  the  act  of  will-making  itself. 

Perhaps  the  expressions  most  strongly  indicative  of  mere  prepara- 
tory instruction  are  the  reply  to  the  last  question  concerning  the  power 
of  sale  in  the  executors,  where  Mr.  Male  said,  "make  it  five  years;" 
and  the  answer  to  that  which  was  said  about  Mrs.  Fenno  paying  rent, 
when  he  said,  "No ;  give  her  a  deed  for  it."  These  expressions  were 
addressed  by  Mr.  Male  to  his  lawyer,  who  was  called  for  the  express 
purpose  of  drawing  a  will,  and  they  were  in  terms  which  required  an 
intervening  act  upon  the  part  of  that  lawyer  to  effectuate  Mr.  Male's 
purpose.  Indeed,  if  that  which  he  said  in  reference  to  the  house  oc- 
cupied by  Mrs.  Fenno  was  not  the  inaccurate  wandering  of  the  mind 
of  a  dying  man,  Mrs.  Fenno  was  to  be  provided  for  by  deed,  and  not 
by  will.  Throughout  the  entire  transaction  there  was  an  utter  absence 
of  language  at  all  indicative  of  a  present  testamentary  action.  I  am 
unable  to  perceive  the  least  foundation  in  the  conversation  for  a  claim 
that  there  existed  in  the  mind  of  Mr.  Male  the  purpose  that  the  very 
words  he  then  spoke  should  be  his  will. 

But  it  is  claimed  that  when  Mr.  Marsh  said  to  the  physicians  and 
Mr.  Baldwin  that  Male  wished  them  to  be  witnesses,  and  asked  Male  if 
that  was  so,  and  upon  Male's  affirmative  reply  recited,  with  the  as- 
sistance of  his  memoranda,  and  obtained  an  assent  to  that  which  he  so 
recited,  there  was  a  complete  nuncupative  will.  Is  this  position  ten- 
able ?  At  the  very  outstart  of  an  examination  of  it,  it  appears  that  that 
to  which  Male  assented  is  unknown,  uncertain,  disputable.  Did  he 
assent  that  the  very  words  which  Marsh  said  constituted  his  will  ?  Or 
did  he  assent  that  they  indicated  a  correct  apprehension  of  the  instruc- 
tions that  he  had  given  for  his  will?  If  the  word  "will"  was  used,  did 
the  testator  not  understand  the  question  to  mean,  "Is  this  your  will  as 
you  propose  to  make  it  ?  "  In  this  sense  Mr.  Marsh  evidently  under- 
stood it,  for  he  immediately  called  for  pen  and  ink,  and  commenced  to 
prepare  a  formal  written  will.  The  court  cannot,  by  favorable  con- 
jecture as  to  the  sense  in  which  Mr.  Male  understood  this  word,  in 


24  FORM  OF  WILLS 

order  to  give  effect  to  his  wishes,  sustain  the  complainant's  position. 
The  intent  to  nuncupate  must  be  established  unequivocally,  by  clear 
and  indisputable  evidence,  and  so,  also,  must  it  be  made  to  appear  that 
the  witnesses,  at  the  very  time  of  the  nuncupation,  understood  that 
the  testator  was  in  the  act  of  nuncupating.  The  situation  of  this  case 
exhibits  the  wisdom  of  the  statutory  requirement  that  the  testator  shall 
bid  persons  present  bear  witness  that  the  words  uttered  are  themselves 
his  will,  for  the  clear  appearance  of  such  a  bidding  would  distinguish 
whether  that  which  is  now  urged  as  a  nuncupative  will  was  mere  in- 
struction or  a  formal  testamentary  act.  *  *  * 
Petition  for  probate  denied. 


II.  Nuncupative  Wills  of  Soldiers  and  Sailors  * 


HUBBARD  v.  HUBBARD. 
(Court  of  Appeals  of  New  York,  1853.     8  N.  Y.  196.) 

William  L.  Hubbard  was  the  captain  and  owner  of  the  schooner 
Oregon  of  Greenport,  Long  Island,  and  died  on  board  the  vessel  while 
she  was  lying  at  anchor  in  the  mouth  of  Delaware  bay,  about  a  mile 
from  the  main  land,  and  the  same  distance  from  the  open  sea,  and 
three  miles  from  the  nearest  settlement  on  shore.  The  tide  ebbs  and 
flows  about  six  feet  where  the  vessel  was  anchored.  She  was  on  her 
return  from  a  voyage  to  Philadelphia,  and  had  put  inside  the  break- 
water on  account  of  head  winds.  Shortly  before  his  death  and  while 
of  sound  mind  and  memory  he  stated  in  the  presence  of  several  wit- 
nesses concerning  the  disposition  of  his  property  that  he  "wished  his 
wife  to  have  all  his  personal  property."  He  was  then  asked  by  Beck- 
with,  the  mate  of  the  vessel,  if  he  wished  her  to  have  his  real  property 
also,  and  replied,  "Yes,  all."  He  stated  that  he  had  had  a  will,  but  it 
was  destroyed.  He  was  then  asked  by  the  mate  what  he  should  tell  his 
wife,  and  replied,  "Tell  her  I  loved  her  till  the  end."  Beckwith  then 
asked  him  who  he  wanted  to  settle  his  affairs,  and  he  replied,  "I  want 
you  to  do  it."  He  did  not  ask  any  one  to  witness  that  what  he  stated 
was  his  will.  All  these  conversations  were  proved  before  the  surro- 
gate by  four  witnesses,  whereupon  he  adjudged  them  a  good  nuncu- 
pative will.  Elias  Hubbard,  the  father  and  heir  at  law  of  the  decedent, 
appealed  to  the  Special  Term  of  the  Supreme  Court  from  the  surro- 
gate's decree,  where  the  decree  was  reversed.  The  General  Term, 
however,  reversed  the  judgment  of  the  Special  Term,  whereupon  Hub- 
bard brought  this  appeal. 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  14. 


NUNCUPATIVE   WILLS   OF   SOLDIERS   AND   SAILORS  25 

MASON,  J.  It  is  provided  in  this  State  by  statute  that  no  nuncupa- 
tive or  unwritten  will,  bequeathing  personal  estate,  shall  be  valid,  un- 
less made  by  a  soldier  while  in  actual  service,  or  by  a  mariner  while  at 
sea.  (2  R.  S.  60,  §  22.)  As  to  the  wills  of  soldiers  in  actual  service, 
and  mariners  at  sea,  they  are  left  entirely  untrammeled  by  our  statutes, 
and  are  governed  by  the  principles  of  the  common  law.  The  exception 
in  our  statute  of  wills  in  favor  of  soldiers  and  mariners  was  taken  from 
the  29  Car.  II,  chap.  3,  and  is  precisely  the  same,  and  the  same  excep- 
tion is  retained  in  England  by  their  new  statute  of  wills.  (1  Viet.,  chap. 
26,  §  11.)  The  testator  was  a  mariner  within  the  meaning  of  the  stat- 
ute. The  courts  have  given  a  very  liberal  construction  to  this  excep- 
tion in  behalf  of  mariners,  and  have  held  it  to  include  the  whole  service, 
applying  equally  to  superior  officers  up  to  the  commander-in-chief  as  to 
common  seamen.  (2  Curt.  Eccl.  338;  1  Wms.  on  Exrs.  97.)  It  has 
been  held  to  apply  to  the  purser  of  a  man  of  war,  and  embraces  all  sea- 
men in  the  merchant  service.  (Morrell  v.  Morrell,  1  Hagg,  51 ;  2  Curt. 
338;  1  Wms.  on  Exrs.  97.)  This  will  was  made  at  sea.  In  legal  par- 
lance waters  within  the  ebb  and  flow  of  the  tide  are  considered  the 
sea.  (Bouv.  Law  Die.,  title  Sea;  Angell  on  Tide  Waters,  44-49;  Gil- 
pin,  528;  In  re  Jefferson,  10  Wheat.  428,  6  L.  Ed.  358;  Baker  v.  Hoag, 
3  Seld.  561.)  Lord  Hale  says  the  sea  is  either  that  which  lies  within 
the  body  of  the  county,  or  without  it.  That  an  arm  or  branch  of  the 
sea  within  the  "fauces  terrae"  where  a  man  may  reasonably  discern 
between  shore  and  shore  is,  or  at  least  may  be,  within  the  body  of  a 
county,  but  that  part  of  the  sea  which  lies  not  within  the  body  of  a 
county  is  called  the  main  sea,  or  ocean.  (Harg.  Tract,  chap.  4,  p.  10; 
Smith  on  the  Const,  of  Stat,  §  588.)  He  adds,  "that  is  called  an  arm 
of  the  sea  where  the  sea  flows  and  reflows,  and  so  far  only  as  the  sea 
flows  and  reflows ;"  and  in  this  he  follows  the  exact  definition  given  by 
the  Book  of  Assizes,  22,  93,  and  this  is  the  doctrine  recognized  by  the 
courts  of  this  country.  (Gilpin,  524;  United  States  v.  Crush,  5  Mason, 
290,  Fed.  Cas.  No.  15,268;  United  States  v.  Wiltberger,  5  Wheat.  76- 
94,  5  L.  Ed.  37;  United  States  v.  Robinson,  4  Mason,  307,  Fed.  Cas. 
No.  16,176;  1  Gallis.  626.) 

The  courts  in  England  have  gone  to  the  utmost  verge  of  construc- 
tion in  extending  this  exception  in  behalf  of  seamen.  In  a  case  which 
came  before  the  prerogative  court  of  Canterbury  in  1840,  when  the  de- 
ceased was  mate  of  her  Majesty's  ship  Calliope,  and  whilst  the  vessel 
was  in  the  harbor  of  Buenos  Ayres,  he  obtained  leave  to  go  on  shore, 
when  he  met  with  a  serious  fall  and  was  so  severely  injured  that  he 
died  on  shore  a  few  days  after.  Immediately  after  the  accident  he 
wrote  on  a  watch  bill  with  a  pencil,  his  will,  and  which  was  unattested, 
but  which  was  cut  out  and  certified  to  by  the  officers  on  board  the  ship, 
and  the  court  held  it  a  good  will  of  a  seaman  at  sea,  and  ordered  it  to 
probate.  (2  Curt.  Eccl.  375.)  The  common-law  doctrine  in  regard  to 
nuncupative  wills  was  borrowed  from  the  civil  law.  (Drummond  v. 
Parish,  3  Curt.  Eccl.  522,  531,  etc.)  By  the  civil  law  the  strict  formali- 


26  FORM  OF  WILLS 

ties,  both  in  the  execution  and  construction  of  nuncupative  wills  of 
soldiers,  was  dispensed  with,  and  although  they  should  neither  call  the 
legal  number  of  witnesses,  nor  observe  any  other  solemnity,  yet  their 
testament  was  held  good  if  they  were  in  actual  service.  (Justin.,  lib. 
2,  title  11 ;  1  Lomax  on  Exrs.  40.)  The  civil  law  was  extremely  indul- 
gent in  regard  to  the  wills  of  soldiers.  If  a  soldier  wrote  any  thing  in 
bloody  letters  upon  his  shield,  or  in  the  dust  of  the  field  with  his 
sword,  it  was  held  a  good  military  testament.  (1  Bl.  Com.  417;  1  Lo- 
max on  Exrs.  40,  41.)  The  common  law,  however,  has  not  extended 
this  privilege  so  far  as  the  civil.  (1  Bl.  Com.,  supra.)  Blackstone  says 
that  soldiers  in  actual  military  service  may  make  nuncupative  wills 
and  dispose  of  their  goods,  wages  and  other  personal  chattels  without 
those  forms,  solemnity  and  expenses  which  the  law  requires  in  other 
cases. 

The  rules,  however,  which  are  to  be  observed  in  making  wills  by 
soldiers  and  mariners  are  the  same  by  the  common  law,  and  yet  it  must 
be  confessed  that  the  formalities  which  are  necessary  to  be  observed 
in  the  making  of  wills  by  soldiers  and  seamen  are  not  defined  with  any 
very  satisfactory  precision  in  any  of  the  English  elementary  treatises 
upon  the  subject  of  wills.  Swinborne  says  that  those  solemnities  only 
are  necessary  which  are  juris  gentium.  (Swinborne,  pt.  1,  §  14.)  Be- 
fore the  statute  the  ecclesiastical  courts  to  whose  jurisdiction  the  es- 
tablishment of  personal  testaments  belonged  required  no  ceremonies  in 
the  publication  thereof,  or  the  subscription  of  any  witnesses  to  attest 
the  same.  (1  Roberts  on  Wills,  147.)  A  will  of  personal  estate,  if 
written  in  the  testator's  own  hand,  though  it  had  neither  his  name  nor 
seal  to  it,  nor  witnesses  present  at  its  publication,  was  held  effectual, 
provided  the  handwriting  could  be  proved.  (Id.  148.)  And  so,  if  writ- 
ten by  another  person,  by  the  testator's  directions,  and  without  his 
signing  it,  it  was  held  good.  (Id.)  It  is  laid  down  in  books  of  very 
high  authority  that  a  nuncupative  testament  may  be  made  not  only  by 
the  proper  motions  of  the  testator,  but  also  at  the  interrogation  of  an- 
other. (Swinborne  on  Wills,  pt.  1,  §  12,  p.  6;  Lomax  on  Exrs.  38;  1 
Wms.  on  Exrs.  102.)  And  Swinborne  says :  "As  for  any  precise  form 
of  words,  none  is  required,  neither  is  it  material  whether  the  testator 
speak  properly  or  improperly,  so  that  his  meaning  appears."  (2  Swin- 
borne, pt.  4,  §  26,  p.  643.)  And  he  says  concerning  the  solemnities  of 
the  civil  law  to  be  observed  in  the  making  of  testaments,  soldiers  are 
clearly  acquitted  from  the  observation  thereof,  saving  that,  in  the 
opinion  of  divers  writers,  soldiers,  when  they  make  their  testaments, 
ought  to  require  the  witnesses  to  be  present.  (1  Swinborne,  pt.  1,  § 
14,  p.  94.)  It  is  necessary,  however,  that  the  testamentary  capacity 
of  the  deceased  and  the  animus  testandi  at  the  time  of  the  alleged  nun- 
cupation should  be  clearly  and  satisfactorily  proved  in  the  case  of  nun- 
cupative will.  (1  Wms.  on  Exrs.  162 ;  1  Adams'  Ecc.  389,  390.) 

In  the  present  case  the  evidence  most  clearly  shows  that  the  deceased 


NUNCUPATIVE   WILLS   OF   SOLDIERS   AND   SAILORS  27 

was  of  sound  mind  and  memory,  and  I  think  the  evidence  in  the  case 
satisfactorily  establishes  the  animus  testandi  at  the  time  of  the  alleged 
nuncupation.  He  told  his  mate  Beckwith  to  tell  his  wife  that  he  loved 
her  till  the  end.  He  was  extremely  sick,  and  undoubtedly  apprehend- 
ing death,  and  when  asked  if  he  had  a  will,  he  replied  that  he  had  not, 
and,  on  being  asked  what  disposition  he  wished  to  make  of  his  prop- 
erty, he  said  he  wished  his  wife  to  have  all  of  his  personal  property, 
and,  at  the  same  time,  requested  Beckwith  to  settle  his  affairs  and  see 
to  his  business.  It  should  be  borne  in  mind  that  as  well  the  testator  as 
all  of  the  witnesses  present  were  seamen,  and  were  undoubtedly  ac- 
quainted with  the  rights  of  mariners  in  regard  to  making  their  wills. 
They  evidently  understood  it  to  be  a  will,  and  spoke  of  it  as  such.  And 

I  think  the  animus  testandi  is  satisfactorily  established.    The  evidence 
is  quite  as  strong  in  the  case  under  consideration  as  it  was  in  the  case 
of  Parsons  v.  Parsons,  2  Greenl.  (Me.)  298,  300,  where  the  testator 
was  asked  to  whom  he  wished  to  give  his  property,  and  replied :    "To 
my  wife,  that  is  agreed  upon,"  and  the  Supreme  Court  of  Maine  sus- 
tained the  will  in  that  case.    I  am  aware  that  it  is  said  in  some  of  the 
books  that  it  is  essential  to  a  nuncupative  will  that  an  executor  be  nam- 
ed, but  this  is  no  more  essential  than  in  a  written  will.    (Rolle's  Abr. 
907 ;  How  v.  Godfrey,  Finch,  361 ;  Prince  v.  Hazleton,  20  Johns.  522, 

II  Am.  Dec.  307.)    I  am  inclined  to  think,  however,  that  the  evidence  is 
sufficient,  in  the  present  case,  to  show  that  the  testator  intended  to 
make  Beckwith  his  executor,  but  it  is  not  necessary  that  he  should 
have  named  one. 

It  is  not  necessary  to  decide  whether  the  mariner  must  make  his 
will  in  his  last  sickness  and  in  extremis,  as  was  held  to  be  the  case 
under  our  former  statute  of  wills  (20  Johns.  503,  11  Am.  Dec.  307), 
and  as  is  required  under  the  statutes  of  several  of  our  sister  States 
(Boyer  v.  Frick,  4  Watts  &  S.  [Pa.]  357;  Baker  v.  Dodson,  4  Humph. 
[Tenn.]  342,  40  Am.  Dec.  650;  Offutt  v.  Offutt,  3  B.  Mon.  [Ky.]  162, 
38  Am.  Dec.  183 ;  In  re  Yarnall's  Will,  4  Rawle  [Pa.]  46,  26  Am.  Dec. 
115  ;  Werkheiser  v.  Werkheiser,  6  Watts  &  S.  [Pa.]  184;  Winn  v.  Bob, 
3  Leigh  [Va.]  140,  23  Am.  Dec.  258;  Day  v.  Murdoch,  1  Munf.  [Va.] 
466;  Portwood  v.  Hunter,  6  B.  Mon.  [Ky.]  538;  Tally  v.  Butterworth, 
10  Yerg.  [Tenn.]  501 ;  2  Greenl.  [Me.]  298) ;  for  there  can  be  no  doubt 
upon  the  evidence  in  this  case,  but  this  will  was  made  both  in  extremis 
and  in  the  last  sickness,  and  under  circumstances  which  precluded  the 
making  of  a  written  will. 

I  think  that  the  factum  of  this  nuncupative  will  is  clearly  established 
by  the  evidence  in  the  case,  and  also  the  testamentary  capacity  of  the  de- 
ceased, and  that  the  animus  testandi  at  the  time  of  the  alleged  nun- 
cupation is  sufficiently  apparent  from  the  evidence  in  the  case,  and  that 
the  judgment  of  the  Supreme  Court  should  be  affirmed.  Judgment  af- 
firmed. 


28  FORM  OF  WILLS 


III.  Nuncupative  Wills  Pass  Title  to  Personalty  Only  * 


MAURER  v.  REIFSCHNEIDER. 

(Supreme  Court  of  Nebraska,  1911.     89  Neb.  673,  132  N.  W.  197,  Ann.  Gas. 

1912C,  643.) 

Appeal  from  District  Court,  Dodge  County ;  Hollenbeck,  Judge. 

Action  by  Kate  Maurer  against  John  Reif Schneider  and  others. 
From  the  judgment,  defendants  John  Reifschneider  and  others  appeal. 
Modified  and  affirmed,  and  cause  remanded  for  further  proceedings. 

LETTON,  J.B  In  1894  Frederick  Stegelmann  owned  and  resided  on 
a  farm  of  80  acres  in  Dodge  county,  Neb.  He  also  owned  another  tract 
of  80  acres  near  by.  Shortly  before  his  death,  which  occurred  on  July 
28,  1894,  and  while  absent  from  home,  he  made  a  nuncupative  will  in 
the  following  form :  "If  I  should  die  I  will  all  my  property  over  to  my 
wife  as  she  has  helped  to  earn  it  and  worked  as  hard  as  I  have  for  it 
and  I  wish  you  to  see  to  it  that  it  should  be  that  way."  This  declara- 
tion was  made  in  the  presence  of  three  witnesses  and  was  afterwards 
reduced  to  writing,  filed  for  probate,  and  allowed  by  the  county  court 
of  Dodge  county.  *  *  * 

The  appellants  contend :  First,  that  the  title  to  the  real  estate  passed 
to  the  widow  by  virtue  of  the  nuncupative  will.  *  *  * 

1.  The  argument  upon  the  first  proposition  is  more  ingenious  than 
satisfactory.  Section  4993,  Ann.  St.  1909,  provides :  "No  nuncupative 
will  shall  be  good  when  the  estate  thereby  bequeathed  shall  exceed  the 
value  of  one  hundred  and  fifty  dollars,  that  is  not  proved,"  etc.  It  is 
argued  that  the  word  "bequeathed"  in  this  section  is  not  to  be  taken 
according  to  the  technical  common-law  meaning,  and  that  the  word 
"estate"  in  this  section  cannot  be  said  to  apply  to  personal  estate  alone, 
for  the  reason  that  in  a  number  of  other  sections  in  the  same  act  the 
word  "estate"  is  used  by  the  Legislature  as  inclusive  of  all  kinds  of 
property.  It  may  be  conceded  that  the  word  "estate"  has  been  used  to 
embrace  within  its  terms  property  of  all  kinds,  and  that  the  word  "be- 
queath" may  under  some  circumstances  and  used  in  certain  connections 
be  held  to  be  sufficient  to  pass  real  estate  in  a  will ;  but  these  considera- 
tions alone  we  think  are  not  sufficient  to  justify  the  court  in  holding 
that  it  was  the  intention  of  the  Legislature  to  set  aside  the  statute  of 
frauds  as  to  oral  wills  which  was  based  upon  actual  experience  of  the 
dangers  to  estates  arising  from  frauds,  and  perjuries  incident  thereto, 
in  seeking  to  establish  nuncupative  wills.  By  statute  this  state  has 
adopted  "so  much  of  the  common  law  of  England  as  is  applicable  and 
not  inconsistent  with  the  Constitution  of  the  United  States,  with  the 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  15. 
e  Part  only  of  the  opinion  is  given. 


HOLOGRAPHIC   WILLS  29 

organic  law  of  this  territory,  or  with  any  law  passed  or  to  be  passed 
by  the  Legislature  of  this  territory."  Ann.  St.  1909,  §  6955.  The  temp- 
tation to  the  use  of  fraud  and  perjury  which  led  to  the  enactment  of 
that  part  of  the  statute  of  frauds  relating  to  nuncupative  wills  (Cole  v. 
Mordaunt,  in  note  to  Mathews  v.  Warner,  4  Ves.  Jr.  196)  is  just  as 
strong  to-day  as  centuries  ago,  and,  until  the  Legislature  by  direct  and 
unequivocal  language  removes  the  common-law  barrier  to  the  transfer 
of  title  to  real  estate  by  oral  wills,  we  must  hold  that  it  still  exists. 

Our  attention  has  not  been  called  to  a  case  from  any  state  except 
Ohio  in  which  it  has  been  held  that  a  nuncupative  will  is  efficacious  to 
pass  the  title  to  land.  The  soundness  of  that  decision  is  to  be  doubted, 
and  in  that  state  the  statute  has  since  been  changed.  This  court  as  well 
as  the  courts  of  this  country  generally  do  not  look  with  favor  upon 
oral  testaments.  Godfrey  v.  Smith,  73  Neb.  756,  103  N.  W.  450,  10 
Ann.  Gas.  1128 ;  Moffett  v.  Moffett,  67  Tex.  642,  4  S.  W.  70 ;  Gardner, 
Law  of  Wills,  §  15;  Schouler,  Wills  &  Administration,  §§  362,  363; 
Prince  v.  Hazleton,  20  Johns.  (N.  Y.)  502,  11  Am.  Dec.  307 ;  30  Am.  & 
Eng.  Ency.  Law  (2d  Ed.)  562,  and  cases  cited  in  note.  *  *  * 


IV.  Holographic  Wills  • 

In  re  BILLINGS'  ESTATE. 
(Supreme  Court  of  California,   1884.     64  Cal.  427,  1  Pac.  701.) 

MYRICK,  J.  The  body  of  the  script  proposed  as  an  olographic  will 
was  entirely  written,  and  was  signed  by  the  hand  of  the  deceased.  The 
date  reads  thus:  "Sacramento,  April  1,  1880."  The  words  "April  1st" 
were  written  by  the  deceased;  the  balance  was  printed,  the  deceased 
having  evidently  taken  a  sheet  of  paper  with  a  letter-head,  stating  the 
business  and  location  of  his  firm,  the  name  of  the  place,  "Sacramento," 
and  the  year  "1880,"  printed,  and  filled  in  the  month  and  day,  "April 
1st." 

We  had  occasion  to  consider  the  principle  underlying  the  facts  of  this 
case,  in  Estate  of  Martin,  58  Cal.  580,  and  Estate  of  Rand,  61  Cal.  468, 
44  Am.  Rep.  555.  Section  1277,  Civil  Code,  requires  that  a  paper,  to 
constitute  an  olographic  will,  must  be  entirely  written,  dated,  and 
signed  by  the  hand  of  the  testator.  It  must  be  entirely  written,  it  must 
be  entirely  dated,  and  it  must  be  entirely  signed  by  him.  If  it  be  partly 
written  by  him  and  partly  written  by  another,  or  printed ;  if  it  be  partly 
dated  or  signed  by  him  and  partly  by  another, — it  is  not  a  compliance 
with  the  statute.  The  words  "April  1st"  do  not  constitute  a  date, — do 
/ 

•  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  17. 


30  FORM  OF  WILLS 

not  show  on  what  April  1st,  the  paper  was  written, — there  being,  as 
was  suggested  on  the  argument,  many  days  "April  1st"  in  the  life  of 
any  man;  it  was  requisite  that  the  whole  date,  April  1,  1880,  should 
have  been  written  by  him  in  order  to  comply  with  the  statute.  Order 
affirmed. 
We  concur:  SHARPSTEIN,  J. ;  THORNTON,  J. 


V.  Conditional  Wills  T 


EATON  v.  BROWN. 

(Supreme  Court  of  the  United  States,  1904.    193  U.  S.  411,  24  Sup.  Ct.  487, 

48  L.   Ed.   730.) 

Mr.  Justice  HOLMES  delivered  the  opinion  of  the  court. 
The  question  in  this  case  is  whether  the  following  instrument  is  en- 
titled to  probate :  „,,,     ..  T\    /~v     A  -31///rVM 

Washington,  D.  C.  Aug.  31/001. 

"I  am  going  on  a  Journey  and  may,  not  ever  return.  And  if  I  do 
not,  this  is  my  last  request.  The  Mortgage  on  the  King  House,  wich  is 
in  the  possession  Mr  H  H  Brown  to  go  to  the  Methodist  Church  at 
Bloomingburgh.  All  the  rest  of  my  properday  both  real  and  personal 
to  My  adopted  Son  L.  B.  Eaton  of  the  life  Saving  Service,  Treasury 
Department  Washington  D.  C,  All  I  have  is  my  one  hard  earnings  and 
and  I  propose  to  leave  it  to  whome  I  please.  Caroline  Holley." 

The  case  was  heard  on  the  petition,  an  answer  denying  the  allega- 
tions of  the  same,  except  on  a  point  here  immaterial,  and  setting  up 
that  the  residence  of  the  deceased  was  in  New  York,  and  upon  a  stipu- 
lation that  the  instrument  was  written  and  signed  by  the  deceased  on 
August  31,  1901,  and  that  she  went  on  her  journey,  returned  to  Wash- 
ington, resumed  her  occupation  there  as  a  clerk  in  the  Treasury  De- 
partment, and  died  there  on  December  17,  1901.  Probate  was  denied 
by  the  Supreme  Court  with  costs  against  the  appellant,  and  this  decree 
was  affirmed  by  the  Court  of  Appeals  upon  the  ground  that  the  will 
was  conditioned  upon  an  event  which  did  not  come  to  pass.  It  will  be 
noticed  that  the  domicile  of  the  testatrix  in  Washington  was  not  ad- 
mitted in  terms.  But  the  Court  of  Appeals  assumed  the  allegation  of 
the  petition  that  she  was  domiciled  in  Washington  to  be  true,  and  ob- 
viously it  must  have  been  understood  not  to  be  disputed.  The  argument 
for  the  appellee  does  not  mention  the  point.  The  petition  also  sets  up 
certain  subsequent  declarations  of  the  deceased  as  amounting  to  a  re- 
publication  of  the  will  after  the  alleged  failure  of  condition,  but  as  these 
are  denied  by  the  answer  they  do  not  come  into  consideration  here. 

T  For  discussion  of  principles,  see  Gardner  on  Wills  (2d    Ed.)  §  18. 


CONDITIONAL   WILLS  31 

It  might  be  argued  that  logically  the  only  question  upon  the  probate 
was  the  factum  of  the  instrument.  Pohlman  v.  Untzellman,  2  Lee, 
Eccl.  319,  320.  But  the  practice  is  well  settled  to  deny  probate  if  it 
clearly  appears  from  the  contents  of  the  instrument,  coupled  with  the 
admitted  facts,  that  it  is  inoperative  in  the  event  which  has  happened. 
Parsons  v.  Lanoe,  1  Ves.  Sr.  189;  S.  C.,  Ambler,  557;  1  Wils.  243; 
Sinclair  v.  Hone,  6  Ves.  607,  610;  Roberts  v.  Roberts,  2  Sw.  &  Tr.  337 ; 
Lindsay  v.  Lindsay,  L.  R.  2  P.  &  D.  459;  Todd's  Will,  2  W.  &  S.  145. 
The  only  question  therefore  is  whether  the  instrument  is  void  because 
of  the  return  of  the  deceased  from  her  contemplated  journey.  As  to 
this,  it  cannot  be  disputed  that  grammatically  and  literally  the  words  "if 
I  do  not"  [return]  are  the  condition  of  the  whole  "last  request."  There 
is  no  doubt  either  of  the  danger  in  going  beyond  the  literal  and  gram- 
matical meaning  of  the  words.  The  English  courts  are  especially  and 
wisely  careful  not  to  substitute  a  lively  imagination  of  what  a  testatrix 
would  have  said  if  her  attention  had  been  directed  to  a  particular  point 
for  what  she  has  said  in  fact.  On  the  other  hand,  to  a  certain  extent, 
not  to  be  exactly  defined,  but  depending  on  judgment  and  tact,  the 
primary  import  of  isolated  words  may  be  held  to  be  modified  and  con- 
trolled by  the  dominant  intention  to  be  gathered  from  the  instrument  as 
a  whole.  Bearing  these  opposing  considerations  in  mind,  the  court  is 
of  the  opinion  that  the  will  should  be  admitted  to  proof. 

"Courts  do  not  incline  to  regard  a  will  as  conditional  where  it  can  be 
reasonably  held  that  the  testator  was  merely  expressing  his  inducement 
to  make  it,  however  inaccurate  his  use  of  language  might  be,  if  strictly 
construed."  Damon  v.  Damon,  8  Allen  (Mass.)  192,  197.  Lord  Pen- 
zance  puts  the  same  proposition  perhaps  even  more  strongly  in  In  the 
Goods  of  Porter,  L.  R.  2  P.  &  D.  22,  23 ;  and  it  is  almost  a  common- 
place. In  the  case  at  bar  we  have  an  illiterate  woman  writing  her  own 
will.  Obviously  the  first  sentence,  "I  am  going  on  a  Journey  and  may, 
not  ever  return,"  expresses  the  fact  which  was  on  her  mind  as  the  occa- 
sion and  inducement  for  writing  it.  If  that  had  been  the  only  reference 
to  the  journey  the  sentence  would  have  had  no  further  meaning.  Cody 
v.  Conly,  27  Grat.  (Va.)  313.  But  with  that  thought  before  her,  it  was 
natural  to  an  uneducated  mind  to  express  the  general  contingency  of 
death  in  the  concrete  form  in  which  just  then  it  was  presented  to  her 
imagination.  She  was  thinking  of  the  possibility  of  death  or  she  would 
not  have  made  a  will.  But  that  possibility  at  that  moment  took  the 
specific  shape  of  not  returning  from  her  journey,  and  so  she  wrote  "if 
I  do  not  return,"  before  giving  her  last  commands. 

We  need  not  consider  whether  if  the  will  had  nothing  to  qualify 
these  words,  it  would  be  impossible  to  get  away  from  the  condition. 
But  the  two  gifts  are  both  of  a  kind  that  indicates  an  abiding  and  un- 
conditioned intent — one  to  a  church,  the  other  to  a  person  whom  she 
called  her  adopted  son.  The  unlikelihood  of  such  a  condition  being 
attached  to  such  gifts  may  be  considered.  Skipwith  v.  Cabell,  19  Grat. 
(Va.)  758,  783.  And  then  she  goes  on  to  say  that  all  that  she  has  is 


32  FORM   OF   WILLS 

her  own  hard  earnings  and  that  she  proposes  to  leave  it  to  whom  she 
pleases.  This  last  sentence  of  self-justification  evidently  is  correlated 
to  and  imports  an  unqualified  disposition  of  property,  not  a  disposition 
having  reference  to  a  special  state  of  facts  by  which  alone  it  is  justified 
and  to  which  it  is  confined.  If  her  failure  to  return  from  the  journey 
had  been  the  condition  of  her  bounty,  an  hypothesis  which  is  to  the  last 
degree  improbable  in  the  absence  of  explanation,  it  is  not  to  be  believed 
that  when  she  came  to  explain  her  will  she  would  not  have  explained 
it  with  reference  to  the  extraordinary  contingency  upon  which  she  made 
it  depend  instead  of  going  on  to  give  a  reason  which  on  the  face  of  it 
has  reference  to  an  unconditioned  gift. 

It  is  to  be  noticed  that  in  the  leading  case  cited  for  the  opposite  con- 
clusion from  that  which  we  reach,  Parsons  v.  Lanoe,  Lord  Hardwicke 
emphasizes  the  proposition  that  under  the  circumstances  of  that  case 
no  court  of  equity  would  give  any  latitude  to  support  such  a  will. 
There  the  will  began  "in  case  I  should  die  before  I  return  from  the 
journey  I  intend,  God  willing,  shortly  to  undertake  for  Ireland."  The 
testator  then  was  married  but  had  no  children.  He  afterwards  returned 
from  Ireland  and  had  several  children.  If  the  will  stood  the  children 
would  be  disinherited,  and  that  was  the  circumstance  which  led  the  Lord 
Chancellor  to  say  what  we  have  mentioned,  and  to  add  that  courts 
would  take  hold  of  any  words  they  could  to  make  the  will  conditional 
and  contingent.  Ambler,  561 ;  1  Ves.  S'r.  192. 

It  is  to  be  noticed  further  that  in  the  more  important  of  the  other 
cases  relied  on  by  the  appellees  the  language  or  circumstances  confirmed 
the  absoluteness  of  the  condition.  For  instance,  "my  wish,  desire,  and 
intention,  now  is  that  if  I  should  not  return  (which  I  will,  no  preventing 
Providence)."  Todd's  Will,  2  W.  &  S.  145.  There  the  language  in  the 
clearest  way  showed  the  alternative  of  returning  to  have  been  present 
to  the  testator's  mind  when  the  condition  was  written,  and  the  will  was 
limited  further  by  the  word  "now."  Somewhat  similar  was  In  the 
Goods  of  Porter,  L.  R.  2  P.  &  D.  22,  where  Lord  Penzance  said,  if  we 
correctly  understand  him,  that  if  the  only  words  adverse  to  the  will 
had  been  "should  anything  unfortunately  happen  to  me  while  abroad," 
he  would  not  have  held  the  will  conditional.  See  In  the  Goods  of 
Mayd,  6  P.  D.  17,  19. 

On  the  other  hand,  we  may  cite  the  following  cases  as  strongly  favor- 
ing the  view  which  we  adopt.  It  hardly  is  worth  while  to  state  them 
at  length,  as  each  case  must  stand  so  much  on  its  own  circumstances 
and  words.  The  latest  English  decisions  which  we  have  seen  qualify 
the  tendency  of  some  of  the  earlier  ones.  In  the  Goods  of  Mayd,  6  P. 
D.  17 ;  In  the  Goods  of  Dobson,  L.  R.  1  P.  &  D.  88 ;  In  the  Goods  of 
Thorne,  4  Sw.  &  Tr.  36;  Likefield  v.  Likefield,  82  Ky.  589,  56  Am. 
Rep.  908 ;  Bradford  v.  Bradford,  4  Ky.  Law  Rep.  947 ;  Skipwith  v. 
Cabell,  19  Grat.  (Va.)  758,  782-784;  French  v.  French,  14  W.  Va.  458, 
502.  Decree  reversed. 


AGREEMENTS  TO  MAKE  WILLS  33 


AGREEMENTS  TO  MAKE  WILLS,  AND  WILLS  RESULT- 
ING FROM  AGREEMENT 

I.  The  Contract  to  Make  a  Will 
1.  VALIDITY* 


BANKS  v.  HOWARD. 
(Supreme  Court  of  Georgia,  1903.     117  Ga.  94,  43  S.   E.  438.) 

COBB,  J.2  Howard  brought  suit  against  Banks,  as  administrator 
of  Elliott,  alleging,  in  substance,  as  follows :  Edward  R.  Elliott  died  in 
1899,  leaving  a  valuable  estate,  and  Banks  was  appointed  his  admin- 
istrator in  1900,  and  took  possession  of  the  estate.  From  the  year 
1881  to  1890,  inclusive,  petitioner  performed  various  services  for  the 
deceased  on  his  farm  and  at  his  wood  yard,  the  value  of  these  services 
in  each  year  being  set  forth.  The  services  mentioned  were  performed 
at  the  special  solicitation  and  request  of  the  deceased,  and  upon  his 
assurance  that  if  petitioner  would  be  a  faithful  hand  and  servant,  and 
do  his  duty,  the  deceased  would  provide  for  him  in  his  will,  by  leav- 
ing him  a  sum  of  money  equal  in  value  to  the  services  performed  and 
to  be  performed  by  petitioner.  This  promise  on  the  part  of  the  de- 
ceased was  renewed  from  year  to  year  during  the  period  of  service. 
It  is  alleged  that,  in  performing  the  services  mentioned,  petitioner  "re- 
lied expressly  and  implicitly  upon  the  promises  of  the  said  Elliott  that 
he  should  be  remembered  in  his  will" ;  and  it  is  further  alleged  that 
petitioner  complied  with  his  part  of  the  contract,  and  was  a  faithful 
hand  and  servant,  and  did  his  duty. 

The  last  paragraph  of  the  petition  is  as  follows:  "Petitioner  shows 
that  his  services  for  the  years  hereinbefore  mentioned  were  worth  at 
the  time  they  were  rendered  the  sum  of  twenty-two  hundred  and 
twenty  dollars,  and  that  he  is  entitled  to  interest  thereon,  amounting 
to  the  sum  of  one  thousand  dollars;  and  he  brings  this  his  suit  to 
recover  the  sum  of  thirty-two  hundred  and  twenty  dollars,  principal 
and  interest,  for  the  services  hereinbefore  mentioned,  and  asks  'that 
the  same  be  allowed  him,  in  view  of  the  fact  that  he  was  not  left  a 
legacy  to  reward  him  for  his  labor." 

The  defendant  filed  a  demurrer  setting  up  that  the  petition  set  forth 
no  cause  of  action,  and  that  the  suit  was  barred  by  the  statute  of  lim- 
itations. The  demurrer  was  overruled,  and  the  defendant  excepted. 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  19. 
«  Part  only  of  the  opinion  is  given. 

DUNM.CAS.  WILLS— 3 


34  AGREEMENTS  TO  MAKE   WILLS 

Contracts  under  which  one  of  the  contracting  parties  agrees  with 
the  other,  for  a  valuable  consideration,  that  he  will  make  a  will  giv- 
ing to  the  other  property,  either  real  or  personal,  have  been  sustained 
and  enforced  in  America  from  the  earliest  times,  and  the  validity  of 
such  contracts  seems  now  to  be  beyond  all  doubt.  1  Under.  Wills, 
§  285 ;  Page,  Wills,  §  70  et  seq. ;  Beach,  Wills,  §  53 ;  Schoul.  Wills 
(3d  Ed.)  §  453 ;  8  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1017  et  seq. ;  Mad- 
dox  v.  Rowe,  23  Ga.  431,  68  Am.  Dec.  535 ;  s.  c.  28  Ga.  61 ;  Lowe  v. 
Bryant,  30  Ga.  528,  76  Am.  Dec.  673 ;  Spearman  v.  Wilson,  44  Ga. 
473  (3);  Napier  v.  Trimmier,  56  Ga.  300;  Studer  v.  Seyer,  69  Ga. 
125 ;  Pritchard,  Wills,  §  24.  Where  a  party  in  whose  favor  the  will 
is  to  be  made  has  performed  his  part  of  the  contract,  and  the  other 
party  dies  without  making  the  will,  or  leaves  a  will  in  which  there  is 
no  provision  which  can  be  construed  as  a  compliance  with  the  agree- 
ment, or  leaves  a  will  which,  in  its  terms,  complies  with  the  contract, 
but  which  is  invalid  for  some  reason,  the  disappointed  party  may 
apply  to  a  court  of  equity  for  a  specific  performance  of  the  contract, 
if  it  was  one  of  such  a  nature  that  a  court  of  equity  could  require 
specific  performance;  and  if  not,  and  the  contract  was  one  dealing 
with  property  equity  would  award  damages  as  for  a  breach  of  the 
contract,  or  the  disappointed  party  may  sue  at  law  for  damages  for 
a  breach  of  the  contract  to  make  a  will  in  accordance  with  the  agree- 
ment, or,  if  the  consideration  of  the  contract  was  personal  services 
rendered  to  the  intestate,  the  surviving  party  may  waive  his  rights 
under  the  contract,  and  bring  an  action  at  law  on  a  quantum  meruit 
for  the  value  of  the  services,  relying  upon  the  implied  promise  of  the 
law  in  such  cases.  See  Maddox  v.  Rowe,  23  Ga.  431,  68  Am.  Dec.  535  ; 
Spearman  v.  Wilson,  supra;  Hudson  v.  Hudson,  87  Ga.  678,  13  S. 
E.  583,  27  Am.  St.  Rep.  270;  s.  c.  90  Ga.  581,  16  S.  E.  349;  1  Under. 
Wills,  §  287;  Page,  Wills,  §  76;  Schoul.  Wills  (3d  Ed.)  §  454;  8  Am. 
&  Eng.  Enc.  Law  (2d  Ed.)  p.  1019  et  seq.;  Pritchard  Wills,  §  24. 
If  the  consideration  of  the  contract  is  personal  service  rendered  the 
deceased  during  his  lifetime,  and  the  party  damaged  by  the  failure  to 
make  the  will  in  accordance  with  the  agreement  elects  to  sue  for  a 
breach  of  the  contract,  the  death  of  the  other  party  without  making 
the  will  in  accordance  with  his  agreement  is  to  be  deemed  a  breach  of 
the  contract,  and  the  statute  of  limitations  will  not  begin  to  run  until 
his  death.  Page,  Wills,  §  83 ;  8  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p. 
1020.  On  the  other  hand,  if  the  party  who  is  to  be  benefited  by  the 
will  sees  proper  to  waive  his  rights  under  the  contract,  and  sue  the 
estate  upon  a  quantum  meruit  for  the  value  of  the  services  rendered 
the  deceased  in  his  lifetime,  it  would  seem  that  the  statute  of  limita- 
tions would  begin  to  run  from  the  time  the  service  was  rendered,  and 
not  from  the  date  of  the  death  of  the  intestate.  *  *  *  Judgment 
affirmed. 


THE   CONTRACT   TO   MAKE   A   WILL  35 


2.  APPLICATION  OF  THE  STATUTE  OF  FRAUDS  * 


GRANT  v.  GRANT. 

(Supreme  Court  of  Errors  of  Connecticut,   1893.     63  Conn.  530,  29  Atl.  15, 

38  Am.  St  Rep.  379.) 

Action  by  Christina  Grant  against  Catharine  Grant,  administratrix 
of  William  Grant,  deceased,  for  specific  performance  of  a  parol  agree- 
ment, or,  in  case  that  be  not  granted,  for  $5,000  damages.  The  report 
of  the  committee  appointed  to  find  the  facts  was  accepted  by  the  su- 
perior court,  which  found  the  facts  therein  to  be  true,  and  reserved 
the  case.  Judgment  for  defendant. 

FENN,  J.4  The  plaintiff,  now  23  years  of  age,  when  about  4,  went 
to  reside  with  William  Grant,  of  Torrington,  and  his  wife,  in  conse- 
quence of  a  verbal  promise  made  by  Mr.  Grant  to  her  parents  that,  if 
they  would  let  him  adopt  the  child  as  his  own,  he  would  take  her  with 
him  to  his  home,  and  as  he  and  his  wife  had  no  children  of  their  own, 
they  would  educate  and  maintain  her ;  that  he  had  some  property,  and 
when  he  died  the  child  should  have  it,  what  there  was  left  of  it,  just 
the  same  as  if  she  were  his  own  daughter.  Immediately  after  she  went 
to  reside  in  the  family  Mr.  Grant  and  his  wife  commenced  calling  her 
"Tiny  Grant,"  by  which  name  she  has  ever  since  continued  to  be  known 
and  called.  Mr.  and  Mrs.  Grant  were  always  kind  and  affectionate 
towards  her,  treated  her  as  their  own  daughter,  clothed,  maintained, 
and  educated  her  in  the  district  school  of  the  town,  and  did  every- 
thing for  her  which  kind  and  affectionate  parents  could  or  would  do 
for  their  own  daughter.  On  the  other  hand,  she  was  kind  and  affec- 
tionate towards  them,  and  did  everything  for  them  which  a  kind  and 
affectionate  daughter  could  or  would  do  for  her  parents.  After  she  ar- 
rived at  a  suitable  age,  she  assisted  Mrs.  Grant  about  the  house,  washed 
the  dishes,  made  the  beds,  did  sweeping  and  house  cleaning,  according 
to  her  years,  and  ran  errands  as  required.  This  she  continued  to  do 
down  to  the  date  of  Mr.  Grant's  death.  On  three  or  four  occasions 
he  was  sick,  and  suffered  on  each  of  these  occasions  for  several  weeks. 
On  these  occasions  she  waited  upon  him,  nursed  and  cared  for  him, 
and  he  refused  to  let  any  one  else  attend  upon  him.  He  stated  to  her 
that  she  would  be  well  rewarded  for  what  she  had  done  for  him  and 
for  his  wife.  "You  remain  with  us,  Tiny,"  said  he,  "and  after  I  am 
gone  you  will  be  well  provided  for;  what  I  have  left  shall  belong  to 
you."  These  remarks  and  others  like  them,  he  made  a  great  many 
times  to  the  plaintiff,  to  his  wife,  and  to  a  number  of  his  neighbors. 

8  For  a  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  19. 
*  Part  only  of  the  opinion  is  given. 


36  AGREEMENTS  TO   MAKE  WILLS 

In  consequence  of  these  promises  made  to  her  parents  and  to  herself, 
the  plaintiff  was  induced  to  remain  with  Mr.  and  Mrs.  Grant  as  she  did. 

Mr.  Grant  died  March  4,  1893,  leaving  no  children  of  his  own,  but  a 
wife  and  sister  survived  him.  He  died  intestate,  having  never  adopt- 
ed the  plaintiff  in  accordance  with  the  laws  of  this  state.  She  had 
never  requested  such  adoption,  because  she  did  not  know  or  understand 
that  any  legal  formalities  were  required,  and  expected  that  Mr.  Grant 
would  make  the  promised  provision  for  her  by  will.  His  property  at  the 
time  of  his  death  consisted  of  a  little  over  $12,000  in  all,  of  which  about 
$1,200  was  real  estate.  The  above  facts,  found  by  a  committee,  are, 
though  in  greater  detail,  in  substantial  accordance  with  and  affirmance 
of  the  allegations  of  the  plaintiff's  complaint  against  Mrs.  Grant  (the 
widow),  and  as  administratrix  of  the  decedent's  estate.  Upon  such  re- 
cited facts,  the  claim  of  the  plaintiff,  as  quoted  from  the  brief  in  her  be- 
half, was :  "If  William  Grant  had  made  a  will,  devising  and  bequeathing 
all  of  his  estate  to  this  plaintiff,  his  widow  would  first  be  entitled  to  one 
half  of  the  personal  property,  and  to  the  use  of  one-third  of  the  real 
estate."  The  plaintiff  asks  for  a  decree  that  the  other  half  of  the 
personal  property  shall  be  paid  over  to  her,  and  that  the  title  to  the 
real  estate,  subject  to  the  widow's  dower,  shall  be  vested  in  her,  or 
that  a  decree  will  be  passed  giving  her  an  equivalent  for  these. 

The  committee,  in  addition  to  the  facts  above  recited,  also  made  the 
following  finding :  "The  plaintiff  also  asks  me  to  find  the  value  of  her 
services  to  Mr.  Grant  while  she  remained  in  his  family,  for  the  pur- 
pose of  obtaining  judgment  for  the  amount,  in  case  she  is  not  entitled 
to  the  equitable  relief  prayed  for.  On  this  subject  I  find  it  impossible 
to  place  a  pecuniary  value  on  the  plaintiff's  affection  and  tenderness 
for  Mr.  and  Mrs.  Grant.  I  find,  however,  that  for  the  seven  years 
next  preceding  Mr.  Grant's  death,  on  March  4,  1893,  her  services  to 
Mr.  Grant  were  and  are  reasonably  worth,  as  a  mere  servant,  $12 
per  month,  and  that  interest  should  be  computed  thereon,  if  the  above 
facts  will  authorize  it ;  and,  if  it  is  legally  and  equitably  right  so  to  do, 
I  find  that  this  interest  ought  to  be  compounded  annually." 

From  the  foregoing  statement  it  is  manifest  that  the  reservation  of 
this  case  for  advice,  made  by  the  superior  court,  presents  for  our 
consideration  two  questions:  (1)  Is  the  plaintiff,  upon  the  facts  found, 
entitled  to  the  specific  equitable  relief  prayed  for  ?  and  (2)  if  not,  is  she 
entitled  to  recover  damages  in  this  action  and  upon  this  complaint?  It 
seems  to  us  that  there  are  conclusive  reasons  why  specific  perform- 
ance, as  prayed  for,  cannot  be  granted.  The  alleged  contract  was  whol- 
ly by  parol,  the  consideration  indivisible ;  it  provided,  in  effect,  that  the 
plaintiff,  upon  the  death  of  the  defendant's  intestate,  should  succeed 
to  a  child's  share  in  all  the  property  of  said  intestate,  and  that  such 
property  at  his  death  consisted  of  real  as  well  as  personal  estate.  The 
contract,  therefore,  was  entire.  It  applied  equally  to  every  part  of  the 
estate.  It  concerned  an  interest  in  lands,  and  was  within  the  statute 
of  frauds.  Shahan  v.  Swan,  48  Ohio  St.  25,  26  N.  E.  222,  29  Am. 


THE   CONTRACT   TO   MAKE    A   WILL  37 

St.  Rep.  517;  Donahue's  Appeal  from  Com'rs,  62  Conn.  370,  372,  26 
Atl.  399;  Meyers  v.  Schemp,  67  111.  469;  Pond  v.  Sheean,  132  111. 
312,  323,  23  N.  E.  1018,  8  L.  R.  A.  414;  Clark  v.  Davidson,  53  Wis. 
317,  10  N.  W.  384;  Ellis  v.  Gary,  74  Wis.  176,  42  N.  W.  252,  4  L. 
R.  A.  55,  17  Am.  St.  Rep.  125 ;  Gould  v.  Mansfield,  103  Mass.  408,  4 
Am.  Rep.  573. 

In  some  of  the  cases  above  cited  the  alleged  agreement  or  promise 
expressly  called  for  succession  to  both  real  and  personal  property,  and 
in  one  of  them  it  appeared  that  real  property  was  owned  at  the  date 
of  the  contract.  In  other  cases  the  promise  did  not  so  expressly  em- 
brace both,  but  was  in  general  language,  as  in  the  case  before  us ;  nor 
did  it  appear  whether  any  real  estate  was  owned  at  the  date  of  the 
contract.  Neither  such  express  language  nor  such  ownership  has, 
however,  by  any  of  the  courts  been  regarded  as  a  controlling  consid- 
eration, nor  ought  it  to  be.  The  mischief  which  the  statute  was  in- 
tended to  remedy — the  setting  up  parol  land  titles — would  occur  equal- 
ly in  either  case.  And  in  every  case  in  which  the  effect  of  the  con- 
tract, if  capable  of  enforcement,  would  be  a  transfer  of  land,  and 
therefore  in  every  case  where  such  a  result  might  at  the  time  the  con- 
tract was  made  have  been  contemplated  as  its  possible  effect,  and  after- 
wards found  to  be  its  necessary  one,  if  the  contract  is  enforced,  such 
contract  falls  within  the  operation  of  the  statute.  But  the  plaintiff, 
in  the  brief  presented  in  her  behalf,  conceding  that  the  oral  contract 
was  within  the  provisions  of  the  statute  of  frauds,  contends  that  the 
finding  shows  such  performance  upon  her  part  as  relieves  the  case 
from  the  operation  of  the  statute. 

The  adjudications  upon  the  subject  of  what  constitutes  sufficient 
part  performance  of  an  oral  contract  to  take  it  out  of  the  statute  are 
almost  numberless.  Though  not  in  harmony,  they  appear  to  support 
one  or  the  other  of  two  rules ;  the  stricter  requiring  the  acts  of  part 
performance  to  be  referable  to  the  contract  set  up,  and  to  no  other 
one,  and  the  more  liberal  holding  the  acts  sufficient  if  they  are  such  as 
clearly  refer  to  some  contract  in  relation  to  the  subject-matter  in  dis- 
pute, the  terms  of  which  may  then  be  established  by  parol.  We  have 
had  occasion  very  recently  to  fully  examine  the  subject,  and  have 
adopted  the  latter  and  more  liberal  rule.  Andrew  v.  Babcock,  63 
Conn.  109,  122,  26  Atl.  715.  But,  applying  the  rule,  do  the  acts  stated 
clearly  indicate  a  contract  in  relation  to  the  subject-matter  in  dispute? 
We  think  not.  On  this  point  we  cannot  do  better  than  to  quote  and 
adopt  the  language  of  the  court  in  the  case,  before  cited,  of  Shahan 
v.  Swan,  48  Ohio  St.  39,  26  N.  E.  222,  29  Am.  St.  Rep.  517,  where,  in 
reference  to  very  similar  facts,  the  court  said :  "Acts  of  this  character 
are  not  usually  the  offspring  of  contractual  relations.  Would  the  ordi- 
nary observer  infer  from  them  any  contract  whatever?  Would  they 
not,  rather,  be  attributed  to  higher  motives  ?*.'*•*  Whether  these 
acts  of  alleged  part  performance  be  taken  singly  or  collectively,  they  do 
not  indicate  that  they  were  done  in  performance  of  any  contract  or 


38  AGREEMENTS  TO  MAKE  WILLS 

agreement  respecting  property  rights  of  any  kind,  but  rather  were 
manifestations  of  a  benevolent  and  affectionate  disposition  on  the  part 
of  a  childless  couple  towards  a  gentle  and  affectionate  child  whose 
fate  was  placed  in  their  keeping." 

So,  also,  in  the  case  of  Pond  v.  Sheean,  supra,  a  person,  having  no 
children  of  his  own,  took  an  infant  daughter  of  a  relative  of  his  wife 
to  raise  as  a  member  of  his  family,  and  promised  orally,  with  his  wife's 
consent,  that,  if  the  child's  father  would  permit  her  to  become  a  mem- 
ber of  his  family  and  assume  the  name  of  her  adopter,  he  would,  on 
his  death  and  that  of  his  wife,  give  the  child  all  the  property  he  might 
own.  The  contract  was  fully  performed  by  the  child  and  her  father. 
But  the  court  held  that  a  court  of  equity  could  not  decree  a  specific 
performance  of  the  parol  agreement,  saying  that  the  case  was  clearly 
within  the  statute  of  frauds;  that  the  contract  was  entire,  and,  the 
plaintiff  having  never  been  put  into  possession  of  the  real  estate,  the 
acts  of  part  performance  were  not  sufficient  to  relieve  the  case  from 
the  statute. 

So,  also,  in  the  Wisconsin  case  of  Ellis  v.  Gary,  supra,  where  the 
alleged  agreement  of  the  intestate  was  that  if  Mrs.  Ellis,  the  plaintiff, 
his  stepdaughter,  would  keep  the  house  of  the  deceased,  and  take  care 
of  him  during  the  residue  of  his  life,  he  would  devise  and  bequeath 
to  her  all  his  real  and  personal  property  as  compensation  for  such  serv- 
ices. The  plaintiff  not  only  fully  performed,  but  after  the  death  of 
the  testator  she  remained  in  possession  of  his  real  estate.  But  it  was 
said  that  she  was  not  put  into  possession  under  the  void  agreement, 
and  that  such  possession  had  no  necessary  "reference  thereto;  and  it 
was  held  that  the  case  was  not  relieved  from  the  operation  of  the 
statute.  *  *  * 


3.  REMEDY  FOR  BREACH  5 


BOLMAN  v.  OVERALL. 

(Supreme  Court  of  Alabama,  1886.     80  Ala.  451,  2  South.  624,  60  Am.  Rep. 

107.) 

SOMERVILLE,  J.6  The  appeal  is  from  a  decree  of  the  chancellor  sus- 
taining a  demurrer  to  the  bill  of  complaint  filed  by  the  appellants  for 
specific  performance.  The  complainants  are  the  legatees  under  the 
will  of  one  Augusta  Lohman,  which  instrument  purported  to  be  ex- 
ecuted in  consideration  of  valuable  services  rendered  to  her  in  her 
life-time  by  the  complainants,  and  was  executed  on  December  1,  1881, 
and  delivered  to  Mrs.  Louisa  Bolman,  who  was  made  executrix  of  the 

B  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  20. 

«  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 


THE   CONTRACT   TO    MAKE    A    WILL  39 

will,  and  residuary  legatee  therein,  and  is  one  of  the  complainants.  In 
April,  1883,  the  testator  executed  another  will  in  which  she  sought  to 
revoke  the  previous  one,  with  all  of  the  legacies  made  under  its  pro- 
visions, and  leaving  her  entire  property  to  other  beneficiaries.  This 
will  was  duly  probated;  the  defendant  Overall  being  the  executor 
therein,  and  the  other  defendants  legatees.  The  bill,  in  the  first  place, 
alleges  a  verbal  agreement  made  in  March,  1876,  between  the  com- 
plainant, Mrs.  Bolman,  and  the  deceased  testator,  then  living,  by  which 
it  was  agreed  that  the  latter  would  leave  to  the  complainants  (Mrs. 
Bolman  and  her  two  daughters)  all  the  property  owned  by  her  at  her 
death  if  they  would  come  and  nurse  her  and  take  care  of  her,  she 
being  then  sick  in  bed  and  in  a  helpless  condition.  The  bill  avers  a 
faithful  performance  of  the  duties  assumed  by  the  complainants  for 
over  seven  years;  that  from  March,  1876,  to  February,  1883,  they 
either  went  to  the  testator's  residence,  or  else  had  her  in  their  own,  and 
nursed  her  in  sickness,  cooked  and  washed  for  her,  and  attended  to 
all  her  wants,  until  she  declined  further  to  receive  their  attentions, 
and  left  their  home,  against  their  expressed  dissent,  several  years  be- 
fore her  death,  which  did  not  occur  until  October,  1886. 

1.  No  doubt  can  be  entertained  as  to  the  nature  of  the  paper  ex- 
ecuted by  Mrs.  Lohman  on  December  1,  1881,  and  delivered  by  her 
to  Mrs.  Bolman,  and  purporting  to  be  the  testator's  last  will  and  testa- 
ment. It  is  clearly  a  will  in  form,  being  testamentary  in  frame  and 
verbiage.  But  it  is  also  a  contract  in  essence  and  fact,  being  executed, 
as  stated  on  the  face  of  the  paper,  "in  consideration  of  past  and  future 
treatment,"  and,  as  shown  by  the  bill,  in  furtherance  of  a  previous  parol 
agreement  that  it  should  be  executed  upon  an  admitted  and  specified 
valuable  consideration.  Cases  are  frequent  in  which  instruments  have 
been  construed  to  be  partly  testamentary  and  partly  contractual ;  and, 
when  based  on  a  valuable  consideration,  a  paper  in  form  a  will  may, 
especially  when  delivered  to  a  party  interested,  or  to  another  for  him, 
constitute  legally  and  in  fact  an  irrevocable  contract.  Taylor  v.  Kelly, 
31  Ala.  59,  68  Am.  Dec.  150;  Kinnebrew  v.  Kinnebrew,  35  Ala.  628; 
Schouler,  Wills,  §§  452,  453.  The  purpose  of  the  bill,  as  we  construe 
it,  is  not  to  enforce  the  parol  agreement  in  which  the  deceased  agreed 
to  bequeath  to  complainants  all  the  property  she  might  own  at  the 
time  of  her  death,  but  rather  to  enforce  the  modified  agreement  as 
evidenced  by  the  written  instrument  purporting  to  be  a  will.  No 
question  can  properly  arise,  therefore,  as  to  the  influence  of  the 
statute  of  frauds,  in  view  of  the  fact  that  real  estate  is  involved  in 
the  transaction.  There  are  many  well-considered  cases,  however,  in 
which  parol  agreements  of  this  character,  executed  on  the  side  of  the 
promisee,  have  been  enforced  even  in  relation  to  land.  But  on  these 
we  have  now  no  occasion  to  comment  at  any  length.  Rhodes  v. 
Rhodes,  3  Sandf.  Ch.  (N.  Y.)  279;  Shakespeare  v.  Markham,  10 
Hun  (N.  Y.)  311. 


40  AGREEMENTS  TO  MAKE  WILLS 

2.  There  is  nothing  in  this  contract  which  is  repugnant  to  public 
policy.     All  the  authorities  agree  that  one  may,  for  a  valuable  con- 
sideration, renounce  the  absolute  power  to  dispose  of  his  estate  at 
pleasure,  and  bind  himself  by  contract  to  dispose  of  his  property  by 
will  to  a  particular  person,  and  that  such  contract  may  be  enforced  in 
the  courts  after  his  decease,  either  by  an  action  for  its  breach  against 
his  personal  representative,  or,  in  a  proper  case,  by  bill  in  the  nature 
of  specific  performance  against  his  heirs,  devisees,  or  personal  repre- 
sentative.    The  validity  of   such  agreements,   as  remarked  by   Mr. 
Freeman  in  a  recent  note  on  this  subject  to  the  case  of  Johnson  v. 
Hubbell,  10  N.  J.  Eq.  332,  66  Am.  Dec.  773,  784,  "is  supported  by  an 
unbroken  current  of  authorities,  both  English  and  American."    Wright 
v.  Tinsley,  30  Mo.  389 ;   Parsell  v.  Stryker,  41  N.  Y.  480.    This  prin- 
ciple does  not  embrace  cases  where  services  are  rendered,  or  other 
valuable  consideration  parted  with,  in  mere  expectation  of  a  legacy, 
and  in  reliance  only  on  the  testator's  generosity.     But  there  must  be 
a  contract,  express  or  implied,  stipulating  for  an  agreed  compensation 
by  way  of  legacy  or  devise.     Martin  v.  Wright,  13  Wend.  (N.  Y.) 
460,  28  Am.  Dec.  468. 

3.  The  principle  upon  which  courts  of  equity  undertake  to  enforce 
the  execution  of  such  agreements  is  referable  to  its  jurisdiction  over 
the  subject  of  specific  performance.    It  is  not  claimed,  of  course,  that 
any  court  has  the  power  to  compel  a  person  to  execute  a  last  will  and 
testament  carrying  out  his  agreement  to  bequeath  a  legacy;    for  this 
can  be  done  only  in  the  life-time  of  the  testator,  and  no  breach  of  the 
agreement  can  be  assured  so  long  as  he  lives.    And,  after  his  death,  he 
is  no  longer  capable  of  doing  the  thing  agreed  by  him  to  be  done. 
But  the  theory  on  which  the  courts  proceed  is  to  construe  such  an 
agreement,  unless  void  under  the  statute  of  frauds  or  for  other  rea- 
son, to  bind  the  property  of  the  testator  or  intestate  so  far  as  to  fasten 
a  trust  on  it  in  favor  of  the  promisee,  and  to  enforce  such  trust  against 
the  heirs  and  personal  representatives  of  the  deceased,  or  others  hold- 
ing under  them  charged  with  notice  of  the  trust.    It  is  in  the  nature 
of  a  covenant  to  stand  seized  to  the  use  of  the  promisee,  as  if  the 
promisor  had  agreed  to  retain  a  life-estate  in  the  property,  with  re- 
mainder to  the  promisee  in  the  event  the  promisor  owns  it  at  the  time 
of  his  death,  but  with  full  power  on  the  part  of  the  promisor  to  make 
any  bona  fide  disposition  of  it,  during  his  life,  to  another,  otherwise 
than  by  will.    The  power  to  make  such  a  will  having  been  renounced, 
the  attempt  to  exercise  it  is  deemed  a  fraud  on  the  rights  of  the  prom- 
isee under  the  contract,  thus  bringing  into  exercise  another  ground  of 
equity  jurisdiction. 

As  said  by  Lord  Camden  in  Dufour  v.  Perran,  (quoted  by  Hargrave 
in  his  Judicial  Arguments,  volume  2,  p.  310):  "There  is  no  difference 
between  one's  promising  to  make  a  will  in  such  a  form,  and  making 
such  will  with  a  promise  not  to  revoke  it.  The  courts  do  not  set  aside 


THE    CONTRACT   TO   MAKE   A   WILL  41 

the  will  in  such  cases,  but  the  executor,  heir,  or  devisee  is  made  a 
trustee  to  perform  the  contract."  Wright  v.  Tinsley,  30  Mo.  389 ;  Lord 
Walpole  v.  Lord  Orford,  3  Ves.  402;  Rivers  v.  Rivers,  3  Desaus. 
(S.  C.)  190,  4  Am.  Dec.  609;  Randall  v.  Willis,  5  Ves.  Jr.  262;  John- 
son v.  Hubbell,  10  N.  J.  Eq.  332,  66  Am.  Dec.  773,  787,  note  and  cases 
cited;  1  Story,  Eq.  Jur.  (12th  Ed.)  §§  783-786;  Taylor  v.  Mitchell, 
87  Pa.  518,  30  Am.  Rep.  383;  Logan  v.  McGinnis,  12  Pa.  27;  Wat. 
Spec.  Perf .  §  41 ;  Green  v.  Broyles,  3  Humph.  (Tenn.)  167,  39  Am. 
Dec.  156;  Schumaker  v.  Schmidt,  44  Ala.  454,  4  Am.  Rep.  135.  Mr. 
Schouler,  in  his  recent  treatise  on  Wills,  (section  454,)  lays  down  the 
rule,  as  deduced  from  the  authorities,  to  be  that  "where  one  contracts, 
upon  valuable  consideration,  to  execute  a  will  after  a  certain  tenor, 
the  agreement  is  binding  upon  his  death,  and  may  be  specifically  en- 
forced against  his  personal  representatives  and  his  estate."  Mr.  Par- 
sons, after  recognizing  the  validity  and  binding  force  of  such  agree- 
ments, and  their  incapability  of  literal  specific  performance,  observes 
in  his  work  on  Contracts  that  it  has,  nevertheless,  "been  held  to  be 
within  the  jurisdiction  of  equity  to  do  what  is  equivalent  to  a  specific 
performance  of  such  an  agreement,  by  requiring  those  upon  whom 
the  legal  title  has  descended  to  convey  the  property  in  accordance  with 
its  terms."  "And,"  he  adds,  "the  court  will  not  allow  this  post  mortem 
remedy  to  be  defeated  by  any  devise  or  conveyance  in  the  life-time 
inconsistent  with  the  agreement."  3  Pars.  Cont.  (7th  Ed.)  406,  407. 
In  Waterman  on  Specific  Performance  (section  41)  it  is  said  general- 
ly :  "A  person  may  make  a  valid  agreement  binding  himself  to  dispose 
of  his  property  in  a  particular  way  by  last  will  and  testament,  and  a 
court  of  equity  will  enforce  such  an  agreement  by  compelling  the  heir 
at  law  to  convey  the  property  in  accordance  with  the  terms  of  the  con- 
tract ;  but  such  a  contract,  especially  when  it  is  attempted  to  be  estab- 
lished by  parol,  is  regarded  with  suspicion,  and  not  sustained  except 
upon  the  strongest  evidence  that  it  was  founded  upon  a  valuable  con- 
sideration, and  deliberately  entered  into  by  the  decedent." 

Under  all  of  the  best  considered  authorities,  we  are  of  opinion  that 
the  contract  evidenced  by  the  will  is  one  which  is  capable  of  being  en- 
forced against  the  executor  and  legatees  under  Mrs.  Lohman's  last 
will,  they  being  declared  to  be  trustees  of  the  executor's  property  for 
complainants'  benefit,  unless  some  good  reason  is  shown  to  the  con- 
trary other  than  appearing  in  the  statements  of  the  bill. 

4.  The  complainants  are  all  legatees  in  the  will,  and  can  clearly 
unite  in  the  enforcement  of  their  rights,  which  do  not  differ  in  nature 
or  kind,  but  only  in  extent  or  quantity. 

5.  The  fact  that  the  last  will  of  Mrs.  Lohman  has  been  probated 
by  a  court  having  exclusive  jurisdiction  of  the  probate  of  wills,  and 
that  this  action  of  such  court  is  conclusive  on  the  complainants  and  all 
others,  is  no  answer  to  the  purpose  and  prayer  of  the  bill.    No  effort  is 
made  to  disturb  or  set  aside  such  probate,  but  to  fasten  a  trust  on  the 


42  AGREEMENTS  TO  MAKE  WILLS 

property  in  the  hands  of  the  executor  and  legatees,  who  are  admitted 
to  hold  the  legal  title  to  such  property  by  virtue  of  the  will,  and  its 
probate  by  the  proper  court  *  *  *  Affirmed  (for  other  reasons). 


ALLEN  v.  BROMBERG. 
(Supreme  Court  of  Alabama,  1906.     147  Ala.  317,  41  South.  771.) 

DENSON,  P.7  The  bill  in  this  case  was  filed  to  enjoin  the  probate 
of  a  will  in  the  probate  court  of  Mobile  county,  upon  the  allegation 
that  its  execution  was  in  violation  of  a  contract,  made  between  the  tes- 
tatrix, and  her  husband,  to  execute  similar  wills,  with  the  same  ex- 
ecutors, each  in  favor  of  the  other  for  life,  with  remainder  to  certain 
public  charities.  The  bill  avers  that  the  contract  was  performed  upon 
the  part  of  the  husband  who  died  first,  and  that  the  testatrix,  his  wife, 
accepted  the  benefits  therefrom.  It  further  avers  that  the  testatrix  in 
1902  made  a  will  in  conformity  with  her  contract  with  her  husband, 
but  in  1905  had  executed  the  will  containing  different  dispositions,  the 
probate  of  which  is  opposed.  The  persons  named  as  executors  in  the 
will  of  1905,  and  the  beneficiaries  therein,  are  made  parties  defendant. 
The  injunction  prayed  for  in  the  bill  was  granted.  This  appeal  is  from 
the  refusal  to  dissolve  the  injunction  and  to  dismiss  the  bill  for  want  of 
equity. 

It  cannot  be  doubted  that  a  person  may  make  a  valid  agreement  to 
dispose  of  his  property  by  will  in  a  particular  way,  and  that  a  court  of 
equity  will  require  its  performance.  Bolman  v.  Overall,  80  Ala.  451, 
2  South.  624,  60  Am.  Rep.  107.  In  the  case  cited  it  is  said :  "It  is  not 
claimed,  of  course,  that  any  court  has  the  power  to  compel  a  person  to 
execute  a  last  will  and  testament  carrying  out  his  agreement  to  bequeath 
a  legacy ;  for  this  can  be  done  only  in  the  lifetime  of  the  testator,  and 
no  breach  of  the  agreement  can  be  assumed  as  long  as  he  lives,  and 
after  his  death  he  is  no  longer  capable  of  doing  the  thing  agreed  by  him. 
But  the  theory  on  which  the  courts  proceed  is  to  construe  such  agree- 
ment, unless  void  under  the  statute  of  frauds  or  for  other  reason,  to 
bind  the  property  of  the  testator  or  intestate  so  far  as  to  fasten  a  trust 
on  it  in  favor  of  the  promisees,  and  to  enforce  such  trust  against  the 
heirs  and  personal  representatives  of  the  deceased  or  others  holding 
under  them  charged  with  notice  of  the  trust.  The  courts  do  not  set 
aside  the  will  in  such  cases,  but  the  executor,  heir,  or  devisee  is  made 
a  trustee  to  perform  the  contract." 

As  a  contract  for  the  execution  of  a  will  with  particular  provisions 
can  be  specifically  enforced  only  by  fastening  a  trust  on  the  property  of 
the  testator  in  favor  of  the  promisee  and  enforcing  such  trust  against 
the  personal  representatives  and  others  claiming  under  the  will  violat- 
ing the  terms  of  the  contract,  it  is  necessary  that  the  will  be  first  pro- 

t  The  statement  of  facts  Is  omitted. 


JOINT   WILLS  43 

bated,  "for  it  cannot  be  recognized  in  any  forum  until  admitted  to  pro- 
bate." Describes  v.  Wilmer,  69  Ala.  25,  44  Am.  Rep.  501.  Nor  does 
the  fact  that  the  agreement  embraced  the  appointment  of  the  same  ex- 
ecutors in  both  wills  give  equity  to  the  bill.  As  stated,  no  breach  of  the 
agreement  in  any  of  its  parts  can  be  assumed  as  long  as  the  testator 
lives,  and  after  his  death  he  is  no  longer  capable  of  doing  the  thing 
agreed  upon.  Such  agreement  could  be  specifically  enforced  only  by 
setting  aside  the  latter  will  and  probating  the  former.  This  could  not 
be  done.  A  will  is  in  its  very  nature  ambulatory,  subject  to  revocation 
during  the  life  of  him  who  signed  it,  and  is  revoked  by  the  execution 
of  another  will.  Code  1896,  §  4264.  After  such  revocation  it  can  be 
revived  only  by  the  expressed  intention  of  the  testator  himself.  Code 
1896,  §  4266. 

For  the  reasons  above  given,  a  decree  will  be  here  rendered  dissolv- 
ing the  injunction  and  dismissing  the  bill  for  want  of  equity. 

HARALSON,  DOWDELL,  and  ANDERSON,  JJ.,  concur. 


II.  Joint  Wills  8 


GERBRICH  v.  FREITAG. 

(Supreme  Court  of  Illinois,  1905.    213  111.  552,  73  N.  E.  338,  104  Am.  St.  Rep. 

234,  2  Ann.  Cas.  24.) 

CARTWRIGHT,  J.9  An  instrument  in  writing  executed  by  Ulrich  Von 
Cans  and  Hannah  Von  Cans,  husband  and  wife,  was  offered  for  pro- 
bate in  the  county  court  of  McLean  county  as  the  will  of  said  Hannah 
Von  Cans,  who  died  February  15,  1903,  leaving,  surviving  her,  her 
said  husband,  Ulrich  Von  Cans,  five  children  by  her  former  husband, 
Freitag,  and  Henrietta  Ernestine  Von  Cans,  named  in  the  instrument 
as  the  daughter  of  said  Ulrich  and  Hannah.  Appellant,  who  is  one 
of  the  children  of  the  former  marriage,  and  who  was  given  by  the  in- 
strument $1,  with  the  statement  that  she  had  received  other  valuable 
consideration  in  advance,  objected  to  the  probate  of  the  instrument  as  a 
will,  both  because  it  was  not  executed  according  to  law,  and  because  it 
was  not  such  an  instrument  as  could  be  probated  as  the  will  of  Hannah 
Von  Cans.  The  county  court  admitted  the  will  to  probate,  and  appel- 
lant appealed  to  the  circuit  court,  where  it  was  again  admitted  to  pro- 
bate, and  this  is  an  appeal  from  the  order  of  the  circuit  court. 

The  objection  made  to  the  instrument  is  that  it  is  a  joint  will,  incapa- 
ble of  being  probated  as  the  will  of  Hannah  Von  Cans  while  the  other 

8  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  21. 

9  Part  only  of  the  opinion  is  jriven. 


44  AGREEMENTS  TO   MAKE   WILLS 

.naker,  Ulrich  Von  Cans,  is  living.  Two  persons  may  at  the  same  time 
execute  separate  wills  disposing  of  their  property,  and  there  is  no  legal 
objection  to  uniting  the  wills  in  a  single  instrument  if  it  is  such  that  it 
may  take  effect  upon  the  death  of  one  of  the  parties,  so  far  as  it  relates 
to  the  property  of  that  one.  The  fact  that  husband  and  wife  devise 
their  property  reciprocally  to  each  other  by  the  same  instrument,  or 
that  it  is  a  joint  or  mutual  will,  does  not  deprive  it  of  validity,  if  the 
will  can  be  given  effect  on  the  death  of  either,  so  far  as  the  property 
of  that  one  is  concerned.  If  it  is  of  that  character,  it  may  be  probated 
upon  the  death  of  one  as  his  or  her  separate  will,  and,  upon  the  death 
of  the  other,  can  be  again  proved  as  the  separate  will  of  the  other.  Un- 
less the  provisions  of  the  instrument  are  such  that  the  disposition  of 
the  property  is  suspended  after  the  death  of  one  until  the  death  of  the 
other,  so  that  it  cannot  be  executed  as  the  separate  will  of  the  deceased 
party,  it  is  no  objection  that  there  is  but  a  single  instrument.  In  re 
Davis,  120  N.  C.  9,  26  S.  E.  636,  38  L.  R.  A,  289,  58  Am.  St.  Rep.  771 ; 
Betts  v.  Harper,  39  Ohio  St.  639,  48  Am.  Rep.  477 ;  Estate  of  Cawley, 
136  Pa.  628,  20  Atl.  567,  10  L.  R.  A.  93 ;  Evans  v.  Smith,  28  Ga.  98, 
73  Am.  Dec.  751. 

In  this  case  the  instrument  was  declared  by  the  parties  to  be  their 
joint  last  will  and  testament.  Hannah  Von  Cans  was  the  owner  of 
280  acres  of  land,  and  also  of  an  undivided  one-half  of  119  acres  of 
which  she  and  her  husband,  Ulrich  Von  Cans,  were  tenants  in  common ; 
he  owning  the  other  undivided  one-half.  These  lands  were  their  only 
property.  The  will  provided  that  the  just  debts  and  funeral  expenses 
of  the  makers  should  be  paid,  including  a  mortgage  for  $10,000  on  the 
lands,  and  directed  that  the  five  children  to  whom  the  lands  were  de- 
vised should  each  assume  the  sum  of  $2,000,  or  such  equalized  portion 
of  the  mortgage  as  might  remain  unpaid  at  the  time  of  their  death. 
The  lands  were  devised  to  four  of  the  children  of  Hannah  Von  Cans, 
excluding  appellant,  and  to  Henrietta  Ernestine  Von  Cans,  in  tracts 
of  80  acres  each,  except  one  tract,  which  was  79  acres.  One  of  the 
daughters  was  to  pay  to  John  Freitag,  one  of  the  sons,  a  note  given 
to  the  testator  and  testatrix  for  cash  loaned  to  her  husband.  The  will 
contained  the  following  provision:  "Each  parcel  of  said  land  to  pass 
into  the  possession  of  our  devisees  at  our,  one  or  the  other,  demise,  and 
each  devisee  to  pay  the  survivor  a  current  rate  of  rent  per  acre  on  said 
land  so  devised  during  his  or  her  natural  life,  together  with  the  taxes, 
interest  on  mortgage,"  etc. 

The  will  was  written  by  a  friend  of  the  parties,  who  had  been  in  the 
grocery  business,  and  who  was  unskilled  in  such  matters.  They  had 
been  in  the  habit  of  trading  with  him,  and  he  wrote  the  will  from  deeds 
furnished  by  them.  While  the  forms  of  expression  used  are  not  the 
same  as  would  have  been  employed  by  one  more  experienced  in  writing 
wills,  we  find  no  especial  difficulty  in  determining  the  intent  of  the  par- 
ties. By  the  will,  each  one  devised  his  or  her  own  property,  with  the 
provision  that  each  parcel  should  pass  into  the  hands  of  the  devisees  at 


JOINT   WILLS  45 

the  death  of  the  owner;  but  such  devisee  was  to  pay  to  the  survivor, 
during  his  or  her  natural  life,  the  current  rate  of  rent  per  acre,  as  well 
as  the  taxes  and  interest  on  the  mortgage.  The  possession  being  sub- 
ject to  the  payment  of  the  current  rate  of  rent,  together  with  the  taxes 
and  interest  on  the  mortgage,  or  such  part  as  might  remain  unpaid,  the 
survivor  would  be  entitled  to  the  full  beneficial  use  of  the  land  for  his 
or  her  life.  That  beneficial  use  in  the  lands  devised  by  Hannah  Von 
Cans  became  vested  in  Ulrich  Von  Cans  upon  her  death,  and  it  would 
only  come  to  an  end,  and  the  land  be  freed  from  the  rent  charge,  upon 
his  death. 

There  is  nothing  in  these  provisions  which  suspended  the  disposition 
of  the  property  or  the  operation  of  the  will  until  the  death  of  Ulrich 
Von  Cans,  but  the  instrument  is,  in  effect,  two  distinct  wills,  which  may 
be  probated  separately,  and  be  successively  proved  as  the  separate  will 
of  each  maker.  *  *  *  Judgment  affirmed. 


46  WHO  MAY  BE  A  TESTATOR 

WHO  MAY  BE  A  TESTATOR 
I.  Wills  of  Married  Women  x 


OSGOOD  v.  BREED. 
(Supreme  Judicial  Court  of  Massachusetts,  1815.    12  Mass.  525.) 

JACKSON,  J.2  The  instrument  offered  for  probate,  as  the  will  of 
Mary  White,  was  executed  by  her  in  the  lifetime  of  her  husband,  John 
White;  and,  although  she  survived  him  about  two  years,  she  never 
republished  the  will  after  his  death. 

If  the  case  stopped  here,  it  would  be  very  clear  that  the  instrument 
could  not  be  approved  and  allowed  as  her  will. 

It  was  said  in  the  argument,  that  every  married  woman  might,  by 
our  law,  devise  her  lands,  as  if  sole,  provided  her  husband  assented 
to  it;  the  counsel  for  the  appellant  contending  that  married  women 
were  included  in  the  description  of  persons,  who,  by  our  statute  of 
wills,  [1783,  c.  24,]  are  capable  of  devising  real  estate,  and  that  the 
English  cases  to  the  contrary  did  not  apply  here,  because  they  are 
founded  on  the  statute  of  34  &  35  Hen.  8,  c.  5,  which  expressly  pro- 
hibits such  devises  by  married  women. 

The  English  statute  of  wills  [32  Hen.  8,  c.  1]  authorizes  every  per- 
son having  lands,  &c.,  to  devise  them;  and  it  seems  to  have  been  the 
better  opinion,  on  the  construction  of  that  statute,  that  a  married  wo- 
man could  not  make  a  will  of  lands.  But  as  "divers  doubts,  questions, 
and  ambiguities"  had  arisen,  or  were  apprehended  on  that  and  other 
points,  the  statute  of  34  &  35  Hen.  8,  c.  5,  was  made  to  remove  them ; 
and  this  last  statute,  §  14,  contains  the  express  prohibition,  before  men- 
tioned, as  to  married  women. 

Our  statute  provides,  that  persons  of  full  age  and  of  sane  mind  may 
dispose  of  their  real  estates,  "as  well  by  last  will  and  testament  in  writ- 
ing, as  otherwise  by  any  act  executed  in  his  or  her  lifetime."  This  is 
almost  precisely  the  language  of  the  statute  of  32  Hen.  8,  and  it  was 
not  the  design,  in  either  case,  to  alter  the  relation  between  husband  and 
wife,  or  the  legal  effects  of  that  relation,  but  only  to  provide  that  every 
individual,  who  could,  by  his  own  act,  lawfully  aliene  his  estate,  whilst 
living,  might  devise  it  at  his  death. 

It  is  no  answer,  to  say  that  a  man  and  his  wife  might  in  England 
convey  her  land  by  fine,  and  in  this  State  by  their  joint  deed.  Such  a 
conveyance  is  not  her  act;  it  is  the  joint  act  of  both.  And  even  the 

1  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  25,  26. 

2  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 


WILLS   OF  FELONS  47 

express  assent  of  the  husband  to  her  will,  however  expressed,  would 
not  make  it  operate  as  their  joint  deed,  within  the  law  and  usage  of 
Massachusetts,  no  more  than  if  he  had  joined  her  in  a  parol  conveyance 
of  her  land.  It  may  be  further  observed,  if  necessary,  in  support  of 
this  uniform  construction  and  understanding  of  our  law,  that  married 
women  are  not  strictly  within  the  letter  of  the  statute.  The  power  of 
devising  is  given  to  "every  person  lawfully  seized  of  any  lands,  &c.,  in 
his  or  her  own  right."  But  a  married  woman  is  not  so  seized.  She 
and  her  husband  are  jointly  seized  in  her  right. 

The  circumstance  of  surviving  her  husband  does  not  render  valid 
the  will  of  a  married  woman,  unless  she  republishes  it  after  his 
death.  *  *  * 

Decree  refusing  probate  affirmed. 


II.  Wills  of  Felons8 


RANKIN'S  HEIRS  v.  RANKIN'S1  EX'RS. 
(Court  of  Appeals  of  Kentucky,  1828.     6  T.  B.  Hon.  531,  17  Am.  Dec.  161.) 

OWSLEY,  J.4  Reuben  Rankin  was  charged  with  the  murder  of  John 
Blake,  and  was  indicted  for  the  offense,  put  upon  his  trial,  found  guilty 
by  the  verdict  of  a  jury,  and  sentenced  to  be  hung  by  the  judgment  of 
the  court. 

Between  the  time  when  the  sentence  of  condemnation  was  pro- 
nounced, and  the  period  fixed  by  the  court  for  his  execution,  Rankin 
departed  this  life,  having  previous  to  his  death,  but  after  sentence,  in 
due  and  legal  form,  made  and  published  his  last  will  and  testament  in 
writing,  by  which  he  disposed  of  all  his  estate.  The  will  was  afterward 
presented  to  the  county  court  of  Bourbon  for  probate,  by  the  executors 
therein  named,  and,  though  contested  by  the  heirs  of  Rankin,  it  was 
proved  and  admitted  to  record. 

The  heirs,  being  dissatisfied  with  the  decision  of  the  county  court, 
have  brought  the  case  before  this  court  for  revision. 

The  execution  of  the  will,  by  the  testator,  in  legal  form,  is  not  con- 
tested by  the  heirs,  nor  do  they  pretend  that  he  was  not,  at  the  date 
of  the  will,  of  sane  mind ;  but  it  is  argued  by  their  counsel  that  after 
the  testator  was  convicted  of  the  murder  charged  against  him  he  was 

civiliter  mortuus,  and  therefore  incapable   of  making  a  valid  will. 
*     *     * 

In  England,  where  attainder  or  conviction  of  felony  works,  not  only 
corruption  of  blood,  but  also  a  forfeiture  of  the  lands  and  goods  of 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  28,  29. 
*  Part  only  of  the  opinion  is  given. 


48  WHO  MAY  BE  A  TESTATOR 

the  offender,  authority  is  not  wanting  to  prove  the  incompetency  of  the 
attainted  or  convicted  person  to  make  a  will ;  but,  upon  adverting  to 
those  authorities,  it  will  be  found  that  the  incompetency  of  the  attainted 
or  convicted  person  to  do  so  results  exclusively  from  the  forfeiture, 
which  by  the  laws  of  that  country  follows  the  attainder,  or  conviction, 
as  an  inseparable  consequence,  and  from  the  incapacity  of  the  person 
attainted,  or  convicted,  afterwards  to  hold  any  estate  except  for  the 
use  and  benefit  of  the  king. 

Thus  in  Shepherd's  Touchstone,  p.  404,  it  is  said :  "A  traitor  attainted 
from  the  time  of  a  treason  committed,  can  make  no  testament  of  his 
lands  or  goods,  for  they  are  all  forfeited  to  the  king,  but  after  the  time 
he  hath  a  pardon  from  the  king  for  his  offenses,  he  may  make  a  testa- 
ment of  his  lands  or  goods  as  another  man.  A  man  that  is  attainted,  or 
convicted  of  felony,  cannot  make  a  testament  of  his  lands  or  goods,  for 
they  are  forfeited;  but  if  a  man  be  only  indicted,  and  die  before  at- 
tainder, his  testament  is  good  for  his  lands  and  goods  both.  And  if  he 
be  indicted,  and  will  not  answer  upon  his  arraignment,  but  standeth 
mute,  etc.,  in  this  case,  his  lands  are  not  forfeited,  and  therefore  it 
seems  he  may  make  a  testament  of  them." 

The  same  doctrine  is  to  be  found  in  Swinb.  part  11,  §  13,  and  in 
Bacon's  Ab.  title  "Wills  and  Testaments,"  letter  B.  And  Bacon  further 
adds :  "That  however  the  wills  of  traitors,  aliens,  felons  and  outlawed 
persons  are  void  as  to  the  king  or  lord,  that  has  right  to  the  lands  or 
goods  by  forfeiture  or  otherwise ;  yet  the  will  is  good  against  the  tes- 
tator himself,  and  all  others,  but  such  persons  only." 

If,  therefore,  the  reason  and  doctrine  of  the  law  be  correctly  laid 
down  by  these  authors,  it  will  be  perceived  that  the  validity  or  invalidity 
of  the  will,  which  was  made  by  Rankin,  must  depend  upon  the  question 
whether  or  not,  by  the  laws  of  this  country,  he  forfeited  the  whole  of 
his  estate,  upon  being  convicted  of  the  murder  of  Blake.  If,  on  the 
conviction,  the  whole  of  his  estate  was  forfeited,  there  remained  noth- 
ing which  he  could  transmit  by  will  to  others,  and  of  course,  according 
to  the  authorities  cited,  his  will  must  be  held  void  and  inoperative.  But 
if,  notwithstanding  the  convicton,  there  was  not  an  entire  forfeiture  of 
all  his  estate,  according  to  the  same  authorities,  he  was  capable  of  dis- 
posing of  the  interest  not  forfeited,  and  as  to  that  interest,  be  it  what 

it  may,  his  will  can  have  an  operation,  and  must  be  adjudged  valid. 
*  *  * 

It  was,  therefore,  not  the  absolute  fee-simple  estate  of  the  offender 
in  lands  and  goods  that,  according  to  the  Constitution,  was  forfeited 
to  the  commonwealth  on  attainder,  or  conviction  of  felony ;  but  it  was 
the  interest  or  estate,  which  the  offender  was  entitled  to  during  his  life 
only,  that  by  the  laws  in  force  at  the  passage  of  the  act  was  forfeited. 
The  reversionary  interest,  or,  in  other  words,  that  part  of  the  estate 
which  remained  after  the  death  of  the  offender,  according  to  those  laws, 
resided  in  him  after  conviction,  and,  since  the  passage  of  the  act,  must, 


NATURE    OF   TESTAMENTARY   CAPACITY  49 

we  apprehend,  still  be  understood  to  continue  to  reside  in  the  offender, 
though  attainted  or  convicted. 

It  results,  therefore,  that,  notwithstanding  Rankin's  conviction  of  the 
murder  of  Blake,  he  retained  a  reversionary  interest  in  all  the  lands 
and  personal  estate  owned  by  him  at  the  time  of  conviction ;  so  that  on 
account  of  any  forfeiture  of  his  estate  he  cannot,  according  to  the  au- 
thorities cited,  be  deemed  incompetent  to  dispose  of  the  interest  not  for- 
feited, and  still  possessed  by  him.  Nor  is  there  anything  in  the  nature 
or  character  of  that  interest  which  forbids  its  being  disposed  of  by  will. 
The  Constitution,  as  well  as  the  act  of  1796,  had  both  declared  that  no 
conviction  of  felony  should  work  corruption  of  blood.  There  was, 
therefore,  nothing  either  in  the  sentence  of  condemnation  against  Ran- 
kin,  or  in  the  nature  of  the  interest  in  reversion  held  by  him,  which 
would  have  prevented  that  interest  from  descending  and  passing  to  his 
legal  representatives,  provided  he  had  died  intestate ;  and  the  rule  is 
well  settled,  that  whatever  is  descendable  is  also  devisable  by  will. 

It  is,  therefore,  the  opinion  of  a  majority  of  the  court,  the  Chief 
Justice  dissenting,  that,  notwithstanding  the  conviction  of  Rankin,  he 
was  capable  of  making  a  will,  and  that  the  county  court  was  correct  in 
admitting  it  to  record. 

The  order  of  that  court  must,  consequently,  be  affirmed  with  cost. 


III.  Nature  of  Testamentary  Capacity  8 


SEHR  v.  LINDEMANN. 
(Supreme  Court  of  Missouri,  1899.     153  Mo.  276,  54  S.  W.  537.) 

MARSHALL,  J.8  Under  the  statute  of  wills,  the  owner  of  property 
is  permitted  to  dispose  of  it  as  he  chooses  after  his  death.  If  he  makes 
no  disposition  of  it  by  will,  the  statute  of  descents  disposes  of  it  for 
him.  When  a  will  is  contested,  it  devolves  upon  the  proponents  to 
prove  the  execution  of  the  will,  that  the  testator  was  of  requisite  age, 
and  that  he  was  sane.  Harris  v.  Hays,  53  Mo.  90 ;  Benoist  v.  Murrin, 
58  Mo.  322;  Norton  v.  Paxton,  110  Mo.  456,  19  S.  W.  807.  This 
makes  out  a  prima  facie  case,  and  it  then  devolves  upon  the  contestants 
to  establish  incompetency  or  undue  influence. 

By  "competency"  is  meant  intelligence  sufficient  to  understand  the 
act  he  is  performing,  the  property  he  possesses,  the  disposition  he  is 
making  of  it,  and  the  persons  or  objects  he  makes  the  beneficiaries  of 
his  bounty.  Imperfect  memory,  caused  by  sickness  or  old  age,  forget- 

B  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  31. 

«  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 

DUNM.CAS.WILLS — 4 


50  WHO  MAY   BE  A  TESTATOR 

fulness  of  the  names  of  persons  he  has  known,  idle  questions,  or  re- 
quiring a  repetition  of  information,  will  not  be  sufficient  to  establish 
incompetency,  if  he  has  sufficient  intelligence  remaining  to  fulfill  the 
above  definition.  Farmer  v.  Farmer,  129  Mo.  530,  31  S.  W.  926;  Ber- 
beret  v.  Berberet,  131  Mo.  399,  33  S.  W.  61,  52  Am.  St.  Rep.  634; 
McFadin  v.  Catron,  120  Mo.  252,  25  S.  W.  506;  Id.,  138  Mo.  197,  38 
S.  W.  932,  and  39  S.  W.  771 ;  Cash  v.  Lust,  142  Mo.  630,  44  S.  W.  724, 
64  Am.  St.  Rep.  576;  Riley  v.  Sherwood,  144  Mo.  354,  45  S.  W.  1077; 
Fulbright  v.  Perry  Co.,  145  Mo.  432,  46  S'.  W.  955.  Mere  opinions  of 
witnesses  that  the  testator  was  "childish,"  or  acted  "funny,"  or  was 
"worse  than  a  child,"  or  that  there  were  "inequalities  in  the  will,"  un- 
accompanied by  any  testimony  showing  any  particular  act  or  fact  evi- 
dencing incompetency,  do  not  make  out  a  case  of  incompetency,  when 
the  testimony  shows  that  the  testator  "knew  what  he  was  doing  and  to 
whom  he  was  giving  his  property."  Fulbright  v.  Perry  Co.,  145  Mo. 
433,  46  S.  W.  955;  Aylward  v.  Briggs,  145  Mo.  604,  47  S.  W.  510; 
Riley  v.  Sherwood,  144  Mo.,  loc.  cit.  364,  45  S.  W.  1079 ;  McFadin  v. 
Catron,  138  Mo.  197,  38  S.  W.  932,  and  39  S.  W.  771 ;  Von  De  Veld 
v.  Judy,  143  Mo.  348,  44  S.  W.  1117. 

By  "undue  influence"  is  meant  such  influence  as  amounts  to  force, 
coercion,  or  overpersuasion,  which  destroys  the  free  agency  and  will 
power  of  the  testator.  It  is  not  merely  the  influence  of  affection  or 
desire  to  gratify  the  wishes  of  one  who  is  near  and  dear  to  the  testator. 
McFadin  v.  Catron,  138  Mo.  197,  38  S1.  W.  932,  and  39  S.  W.  771 ; 
Riley  v.  Sherwood,  144  Mo.  366,  45  S.  W.  1080;  Fulbright  v.  Perry 
Co.,  145  Mo.  432,  46  S.  W.  955 ;  Aylward  v.  Briggs,  145  Mo.  604,  47  S. 
W.  510.  And  "affirmative  proof  of  such  undue  influence  is  required 
to  be  made  either  by  direct  facts  shown,  or  of  facts  and  circumstances 
from  which  undue  influence  results,  as  a  reasonable  and  fair  inference, 
and  not  a  mere  conjecture."  Doherty  v.  Gilmore,  136  Mo.  414,  37  S. 
W.  1127;  Riley  v.  Sherwood,  144  Mo.  354,  45  S.  W.  1077.  If  there 
is  any  substantial  evidence  of  incompetency  or  undue  influence,  the 
case  should  be  submitted  to  the  jury ;  otherwise,  it  is  the  duty  to  direct 
a  verdict  for  the  proponents.  Fulbright  v.  Perry  Co.,  145  Mo.  432,  46 
S.  W.  955;  McFadin  v.  Catron,  138  Mo.  197,  38  S.  W.  932,  and  39  S. 
W.  771;  Riley  v.  Sherwood,  144  Mo.  354,  45  S.  W.  1077;  Von  De 
Veld  v.  Judy,  143  Mo.  348,  44  S.  W.  1117;  Berberet  v.  Berberet,  131 
Mo.  399,  33  S.  W.  61,  52  Am.  St.  Rep.  634;  Cash  v.  Lust,  142  Mo.  630, 
44  S.  W.  724,  64  Am.  St.  Rep.  576;  De  Foe  v.  De  Foe,  144  Mo.  458,  46 
S.  W.  433. 

The  question,  therefore,  is,  have  these  contestants  brought  this  case ' 
within  the  rules  above  stated?  There  can  be  no  doubt,  under  the  evi- 
dence, that  the  testator  knew  he  was  making  a  will ;  knew  what  prop- 
erty he  owned,  and  where  it  was  located,  and  its  relative  value ;  knew 
the  names  of  his  first  and  second  wives,  and  the  names  and  ages  of  the 
children  born  to  him  by  each  marriage ;  and  knew  what  disposition  he 
was  making  of  his  property.  He  therefore  clearly  came  within  the 


NATURE   OF   TESTAMENTARY   CAPACITY  51 

prima  facie  rule  as  to  competency.  He  was  blind,  and  hence  could  not 
see  to  write.  He  did  not  remember  his  old  friend  Ditter,  whom  he  had 
seen  but  once  for  several  years  before.  He  was  partially  deaf.  He 
was  sick  with  intermittent  fever,  and  the  night  before  the  execution  of 
the  will  his  immediate  family  thought  he  would  die,  but  within  two 
weeks  afterwards  he  was  up,  and  lived  about  three  years  afterwards. 
He  wanted  his  wife  with  him  continually,  and  complained  if  she  left 
the  house.  He  told  the  children  of  the  first  marriage  that  his  second 
wife  and  her  children  had  cursed  him  and  been  cross  to  him.  His  sec- 
ond wife  said  he  was  so  "funny"  they  could  not  get  along  with  him, 
that  he  was  worse  than  a  little  child,  and  that  she  could  not  do  much 
with  him ;  but  he  had  been  a  very  self-willed,  and  even  obstinate,  man 
all  his  life.  He  had  married  his  stepdaughter  after  the  death  of  his 
first  wife  against  the  earnest  protest  of  the  children  of  the  first  mar- 
riage, and  had  lived  with  her  for  40  years,  the  children  of  the  second 
marriage  staying  at  home  with  him,  helping  to  cultivate  the  place,  while 
the  children  of  the  first  marriage  had  married,  had  homes  and  families 
of  their  own,  and  had  been  away  from  his  home  for  25  years.  He  told 
the  lawyers  who  drew  his  will  how  much  property  he  owned,  and  how 
he  wanted  to  leave  it ;  asked  if  he  was  obliged  to  leave  it  to  all  his  chil- 
dren in  equal  parts;  knew  that  he  was  charged  taxes  on  21  or  22  acres 
of  land  when  he  only  owned  19  acres ;  knew  his  children  and  grand- 
children when  they  visited  him;  and  insisted  on  their  coming  often, 
and  treated  them  as  a  father  should ;  and  when,  after  two  hours  spent 
in  the  preparation  and  execution  of  his  will,  and  the  attorneys  were 
about  to  leave,  asked  for  their  bill,  and  wanted  to  pay  it.  But,  while 
the  children  by  the  first  marriage  said  he  was  weak-minded,  they  would 
not  say  he  was  insane,  and  the  doctor  who  treated  his  eyes  four  months 
after  the  will  was  executed  did  not  think  him  just  right  mentally,  but 
would  not  say  he  was  not  of  sound  mind. 

Clearly,  therefore,  the  charge  of  incompetency  was  not  established 
by  the  testimony,  nor  the  prima  facie  case  made  out  by  the  proponents 
overthrown,  and  there  was  therefore  nothing  for  the  jury  to  consider, 
and  the  court  did  right  in  directing  a  verdict  for  the  defendants  upon 
this  issue.  *  *  *  Affirmed. 


-u-in-xv^-^vTV^j^  A-j.  *-*-^£*JLx^ 


/Vj**^^A~*~\-^**\sQ^.    ~ 


52  WHO  MAY  BE  A  TESTATOR 


IV.  Capacity  to  Do  Business  as  a  TestT 


ROWCLIFFE  v.  BELSON. 

(Supreme  Court  of  Illinois,   1914.     261   111.   566,   104  N.   E.  268,   Ann.  Cas. 

1915A,  359.) 

CARTWRIGHT,  J.8  *  *  *  The  court  gave  to  the  jury  instruction 
"F,"  as  follows:  "You  are  instructed  by  the  court  that  even  if  you 
should  believe,  from  the  evidence,  that  Henry  Rowcliffe  had  sufficient 
mind  and  memory  to  attend  to  the  ordinary  business  affairs  of  life, 
yet  if  you  believe,  from  the  evidence,  that  at  the  time  of  the  signing  of 
the  alleged  will  he  was  not  of  sound  and  disposing  mind  and  memory, 
and  that  because  of  such  condition  he  was  unable  rationally  to  com- 
prehend the  nature  and  effect  of  the  provisions  of  the  alleged  will, 
then  you  should  find  that  it  is  not  the  will  of  the  said  Henry  Rowcliffe." 

It  has  always  been  held  that  one  who  has  sufficient  mind  and  mem- 
ory to  attend  to  the  ordinary  business  affairs  of  life  is  capable  of  mak- 
ing a  will.  Meeker  v.  Meeker,  75  111.  260 ;  Greene  v.  Greene,  145  111. 
264,  33  N.  E.  941 ;  Craig  v.  Southard,  148  111.  37,  35  N.  E.  361 ;  Taylor 
v.  Cox,  153  111.  220,  38  N.  E"  656.  The  converse  of  the  proposition  is 
not  always  true.  Waters  *.  Waters,  222  111.  26,  78  N.  E.  1,  113  Am.  St. 
Rep.  359.  The  ability  to  transact  ordinary  business  is  a  higher  test 
of  capacity  to  make  a  will  than  the  law  requires.  A  less  degree  is 
required  for  the  execution  of  a  will  than  for  the  making  of  contracts 
and  the  transaction  of  ordinary  business  involving  a  contest  of  reason, 
judgment,  experience,  and  the  exercise  of  mental  powers  not  at  all  nec- 
essary to  the  testamentary  disposition  of  property.  Ring  v.  Lawless, 
190  111.  520,  60  N.  E.  881 ;  Waugh  v.  Moan,  200  111.  298,  65  N.  E.  713 ; 
Hurley  v.  Caldwell,  244  111.  448,  91  N.  E.  654;  Kellan  v.  Kellan,  258 
111.  256,  101  N.  E.  614;  In  re  Estate  of  Weedman,  254  111.  504,  98  N. 
E.  956. 

The  real  test  of  testamentary  capacity  is  not  whether  a  testator  has 
sufficient  mental  capacity  to  transact  ordinary  business,  but  whether  he 
has  sufficient  mind  and  memory  to  enable  him  to  understand  the  busi- 
ness in  which  he  is  engaged,  which  is  a  lower  degree  of  capacity  than 
required  to  transact  ordinary  business.  Trubey  v.  Richardson,  224 
111.  136,  79  N.  E.  592.  The  instruction  reversed  the  rule,  and  advised 
the  jury  that  one  may  be  capable  of  transacting  ordinary  business  and 
yet  incapable  of  making  a  valid  will  because  not  of  sound,  disposing 
mind  and  memory,  which  in  the  law  means  testamentary  capacity.  It 
eliminated  all  the  testimony  of  the  defendants  that  the  testator  could, 

T  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  32,  33. 
•  Part  only  of  the  opinion  is  given. 


OLD   AGE    AS   BEARING   UPON   TESTAMENTARY   CAPACITY  53 

and  did,  transact  ordinary  business,  and  permitted  the  jury  to  substitute 
the  opinions  of  witnesses  that  he  was  not  of  sound  mind  and  memory 
as  a  test  of  his  ability  to  make  a  will,  and  the. instruction  was  wrong. 
In  Dowie  v.  Sutton,  227  111.  183,  81  N.  E.  395,  118  Am.  St.  Rep.  266, 
instruction  15  was  to  the  effect  that  although  Sutton  could  transact 
ordinary  business,  yet  if  he  was  insane  regarding  the  subject  connected 
with  the  testamentary  disposition  and  distribution  of  his  property,  and 
his  will  was  the  product  of  his  insane  delusion,  it  was  not  valid;  but 
that  was  a  different  proposition  from  the  one  stated  in  this  instruction. 
*  *  *  Reversed. 


V.  Old  Age  as  Bearing  upon  Testamentary  Capacity  • 


POOLER  v.  CRISTMAN. 

(Supreme  Court  of  Illinois,  1893.     145  111.  405,  34  N.  E.  57.) 

CRAIG,  J.10  *  *  *  It  is  next  claimed  that  the  court  erred  in 
giving  defendants'  tenth  instruction,  as  follows :  "You  are  further  in- 
structed that  the  mere  fact  that  a  person  is  of  great  age  creates  no  pre- 
sumption against  the  ability  of  such  person  to  dispose  of  property  by 
deed  or  will ;  and  in  this  case,  although  you  may  believe  from  the  evi- 
dence that  the  testatrix,  Margaret  Pooler,  at  the  time  of  executing  the 
paper  in  question,  was  of  about  the  age  of  86  years,  and  suffering  to 
some  extent  from  weakness  or  bodily  infirmity,  yet  such  circumstances 
would  not  render  her  incapable  of  disposing  of  her  property  by  will  as 
she  saw  fit." 

Extreme  old  age  does  not,  of  itself,  disqualify  a  person  from  making 
a  will,  for  a  man  may  fully  make  his  testament,  how  old  so  ever  he 
may  be,  since  it  is  not  the  integrity  of  the  body,  but  of  the  mind,  that 
is  requisite  in  testaments.  1  Jarm.  Wills,  p.  53.  In  Van  Alst  v.  Hun- 
ter, 5  Johns.  Ch.  (N.  Y.)  148,  where  the  testator  was  between  90  and 
100  years  of  age  when  he  executed  a  will,  Chancellor  Kent  said :  "The 
law  looks  only  to  the  competency  of  the  understanding;  and  neither 
age  nor  sickness  nor  extreme  distress  or  debility  of  body  will  affect  the 
capacity  to  make  a  will,  if  sufficient  intelligence  remains."  In  White- 
nack  v.  Stryker,  2  N.  J.  Eq.  8,  it  was  held  that  old  age  and  failure  of 
memory  do  not,  of  themselves,  necessarily  take  away  a  testator's  ca- 
pacity. See,  also,  Andress  v.  Weller,  3  N.  J.  Eq.  605 ;  Stevens  v.  Van- 
cleve,  4  Wash.  C.  C.  262,  Fed.  Cas.  No.  13,412;  Bird  v.  Bird,  2  Hagg. 
Ecc.  142;  MacKenzie  v.  Handasyde,  Id.  211.  We  think  it  is  a  plain 
proposition,  and  one,  too,  well  established  by  both  text  writers  and  the 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  34. 

10  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 


54  WHO  MAY  BE  A  TESTATOR 

% 

decisions  of  courts,  that  old  age  does  not,  of  itself,  deprive  a  person  of 
testamentary  capacity.  The  instruction  may  not  be  entirely  free  from 
criticism,  but  the  substance  of  it  is  that,  although  the  jury  found  from 
the  evidence  that  the  testatrix  was  86  years  of  age  when  she  executed 
the  will,  and  suffering  from  bodily  infirmity,  such  facts,  standing  alone, 
would  not  render  her  incapable  of  making  a  will. 

We  do  not  see  how  the  jury  could  be  misled  by  this  instruction,  es- 
pecially when  considered  in  connection  with  the  instructions  given  on 
behalf  of  the  complainant,  the  ninth  of  which  reads  as  follows :  "The 
jury  are  instructed  that,  in  order  to  make  a  valid  will,  the  law  requires 
that  a  person  shall  be  of  sound  and  disposing  mind  and  memory,  as  de- 
fined in  these  instructions ;  and  want  of  testamentary  capacity  does  not 
necessarily  require  that  a  person  shall  be  insane.  Weakness  of  intellect, 
arising  from  old  age,  or  great  bodily  infirmity  or  suffering,  or  from  all 
these  combined,  may  render  the  testatrix  incapable  of  making  a  valid 
will,  when  such  weakness  disqualifies  her  from  knowing  or  appreciating 
the  nature,  effect,  or  consequence  of  the  act  she  is  engaged  in."  So, 
also,  by  complainant's  eighth  instruction,  the  jury  was  directed  as  fol- 
lows: "The  court  further  instructs  you  that  if  you  believe  from  the 
evidence  in  this  case  that  Margaret  Pooler,  at  the  time  of  the  execu- 
tion of  the  will,  was  so  diseased,  mentally,  that  she  was  incapable,  by 
reason  of  mental  weakness,  caused  by  disease,  old  age,  or  other  de- 
rangement, of  acting  rationally  in  the  ordinary  affairs  of  life,  and  of 
intelligently  comprehending  the  disposition  she  was  making  of  her 
property,  and  the  nature  and  effect  of  the  provisions  of  said  alleged 
will,  then  they  should  find  that  the  writing  produced  be  not  the  will  of 
Margaret  Pooler,  deceased."  *  *  *  Affirmed. 


VI.  Insanity  as  Affecting  Testamentary  Capacity 
1.  NATURE  OF  INSANE  DELUSIONS  ll 


POTTER  v.  JONES. 

(Supreme  Court  of  Oregon,  1891.     20  Or.  239,  25  Pac.  769,  12  I*  R.  A.  161.) 

LORD,  J.12  This  was  a  proceeding  instituted  in  the  county  court 
of  Clackamas  county  by  the  contestant  to  have  the  order  admitting  to 
probate  the  will  of  her  father,  Cyrus  W.  Jones,  deceased,  vacated  and 
annulled,  and  the  will  set  aside  and  declared  void.  The  will  was  exe- 
cuted on  the  19th  day  of  January,  1887,  and  the  testator  died  on  the 

11  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  37-39. 

12  Part  only  of  the  opinion  is  given. 


INSANITY   AS    AFFECTING   TESTAMENTARY   CAPACITY  55 

20th  day  of  August,  1887,  leaving  several  children,  to  whom  he  devised 
his  property,  with  the  sole  exception  of  the  contestant,  who  was  ex- 
cluded from  its  bounty.  The  proceeding  resulted  in  a  decree  vacating 
the  order,  and  setting  aside  the  will  as  void,  which  was  affirmed  on  ap- 
peal by  a  decree  of  the  circuit  court,  and  from  which  this  appeal  is 
taken.  The  theory  upon  which  the  will  is  alleged  to  be  void  is  that 
the  te'stator,  though  conceded  to  be  of  sound  mind  upon  all  other  sub- 
jects, was  laboring  under  a  delusion  in  relation  to  the  legitimacy  of  his 
daughter,  the  contestant,  causing  him  to  entertain  a  violent  hatred  or 
insane  aversion  towards  her,  which  rendered  him  wholly  incapable  of 
doing  any  legal  act  in  which  her  interest  was  involved,  and  which  so 
affected  and  influenced  him  at  the  time  of  the  execution  of  his  will  as 
caused  him  to  deprive  her  of  all  benefit  in  his  estate.  *  *  * 

The  evidence  shows  that  the  testator  was  a  man  of  sensitive  disposi- 
tion and  of  a  nervous  and  jealous  temperament;  that  early  after  his 
marriage,  and  especially  while  he  and  his  wife  resided  in  Missouri,  he 
became  suspicious  of  her  chastity,  and  entertained  the  belief  that  she 
was  intimate  with  a  man  who  met  her  near  a  certain  spring  for  adul- 
terous purposes,  and  that  two  of  the  children — the  contestant  and  Cal- 
vin Jones — were  the  offspring  of  such  adulterous  embraces.  *  *  * 
To  avoid  prolixity,  we  shall  say  our  conviction  from  the  evidence  is 
that  his  wife  was  a  chaste  woman  and  faithful  to  her  marriage  vows, 
and  that  the  two  children  named  were  not  the  spurious  product  of  her 
adulterous  embraces  with  another  man;  but  the  fact  remains,  accord- 
ing to  the  testimony  of  those  to  whom  he  confided  his  domestic  trou- 
bles, that  he  always  furnished  some  grounds  for  his  belief.  He  identi- 
fied the  party  and  the  place,  and  described  the  clandestine  manner  in 
which  their  improper  meeting  was  effected.  That  such  things  could 
occur,  or  have  occurred  under  less  probable  circumstances,  will  not 
be  denied ;  they  are  only  rendered  improbable  in  the  present  instance  by 
the  absolute  confidence  expressed  in  her  marital  fidelity  by  her  ac- 
quaintances. While,  therefore,  we  shall  regard  this  suspicion  or  belief 
of  her  infidelity  to  her  marriage  bed  with  its  attendant  circumstances 
as  unjust  and  unworthy  of  belief,  we  cannot  disregard  the  fact  that 
there  was  the  opportunity  for  the  parties  to  have  met  at  the  spring,  and 
that  it  might  have  occurred  in  reality  for  perfectly  proper  and  inno- 
cent purposes  or  without  evil  design  or  any  concert  of  action;  yet  to 
a  man  of  the  testator's  sensitive  and  jealous  disposition  a  trifling  cir- 
cumstance of  this  kind  or  a  slightly  imprudent  act  would  incite  his  dis- 
trust and  fill  him  with  jealous  suspicions.  *  *  * 

The  important  question  for  our  decision  now  is,  was  his  belief  in  the 
infidelity  of  his  wife  and  the  illegitimacy  of  the  two  children  an  insane 
delusion,  and,  if  so,  was  he  so  affected  by  such  delusion  at  the  time  of 
the  execution  of  his  will  as  caused  him  to  deprive  the  contestant  of  all 
benefit  in  his  estate?  This  necessarily  leads  to  the  inquiry,  what  is  an 
insane  delusion?  Sir  John  Nicholl  in  the  celebrated  case  of  Dew  v. 
Clark,  3  Addams,  Ecc.  79,  defined  "insane  delusions"  in  these  words : 


56  WHO  MAY  BE  A  TESTATOR 

"Wherever  the  patient  once  conceives  something  extravagant  to  exist, 
which  still  has  no  existence  whatever  but  in  his  own  heated  imagina- 
tion, and  wherever  at  the  same  time,  having  so  conceived,  he  is  incapa- 
ble of  being,  or  at  least  of  being  permanently,  reasoned  out  of  the  con- 
ception, sach  a  patient  is  said  to  be  under  a  delusion  in  a  peculiar,  half- 
technical  sense  of  the  term,  and  the  absence  or  presence  of  delusion, 
so  understood,  forms  in  my  judgment  the  true  and  only  test  or  criterion 
of  present  ox*  absent  insanity."  In  Boughton  v.  Knight,  6  Eng.  R.  352, 
Sir  John  Hannen  adopted  this  definition,  and  expressed  the  belief  that 
it  would  solve  most  if  not  all  of  the  difficulties  which  arise  in  investiga- 
tions of  this  kind.  In  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  560,  Cock- 
burn,  C.  J.,  says :  "When  delusions  exist  which  have  no  foundation  in 
reality,  and  spring  only  from  a  diseased  and  morbid  condition  of  the 
mind,  to  that  extent  the  mind  must  necessarily  be  taken  to  be  unsound." 
Chief  Justice  Denio  said:  "If  a  person  persistently  believes  supposed 
facts  which  have  no  real  existence  except  in  his  perverted  imagination, 
and  against  all  evidence  and  probability,  and  conducts  himself,  however 
logically,  upon  the  assumption  of  their  existence,  he  is,  so  far  as  they 
are  concerned,  under  a  morbid  delusion ;  and  delusion  in  that  sense  is 
insanity."  Society  v.  Hopper,  33  N.  Y.  624.  See,  also,  11  Amer.  & 
Eng.  Enc.  Law,  p.  107,  tit.  "Insanity."  The  belief  of  facts  which  no 
rational  person  would  have  believed  is  insane  delusion.  1  Williams, 
Ex'rs,  35 ;  1  Redf.  Wills,  71.  And  in  a  later  case,  (Middleditch  v.  Wil- 
liams, 45  N.  J.  Eq.  726,  17  Atl.  826,  4  L.  R.  A.  738)  Van  Fleet,  Yice- 
Ordinary,  said  that  "according  to  these  definitions,  it  is  only  a  delusion 
or  conception  which  springs  up  spontaneously  in  the  mind  of  a  testator, 
and  is  not  the  result  of  extrinsic  evidence  of  any  kind,  that  can  be  re- 
garded as  furnishing  evidence  that  his  mind  is  diseased  or  unsound ;  in 
other  words,  that  he  is  subject  to  insane  delusions.  If,  without  evi- 
dence of  any  kind,  he  imagines  or  conceives  something  to  exist  which 
does  not  in  fact  exist,  and  which  no  rational  person  would,  in  the  ab- 
sence of  evidence,  believe  to  exist,  then  it  is  manifest  that  the  only 
way  in  which  his  irrational  belief  can  be  accounted  for  is  that  it  is  the 
product  of  mental  disorder.  Delusions  of  this  kind  can  be  accounted 
for  upon  no  reasonable  theory  except  that  they  are  the  creations  of  the 
mind  in  which  they  originate." 

Tested  by  these  definitions,  can  it  be  said  upon  the  facts  as  disclosed 
by  this  record  that  the  testator  was  beset  with  an  insane  delusion  in 
respect  to  the  legitimacy  of  the  contestant  and  her  brother?  The  cir- 
cumstances which  he  relates  and  upon  which  his  belief  is  founded  fix 
the  place,  indentify  the  person  and  the  manner  of  the  improper  meet- 
ing, nor  is  there  any  attempt  to  deny  that  there  was  such  a  place  or  per- 
son or  that  such  a  meeting  might  not  have  occurred,  only  that  the  adul- 
terous purposes  which  he  ascribed  and  professed  to  believe  to  be  the 
object  of  such  meeting  were  so  absolutely  inconsistent  with  her  known 
character  for  chastity  as  to  be  utterly  unworthy  of  belief,  and  only  to 


INSANITY   AS   AFFECTING   TESTAMENTARY   CAPACITY  57 

be  accounted  for  in  him,  upon  the  theory  of  an  unnatural  dislike  or 
aversion  which  amounted  to  an  insane  delusion.  The  evidence  in  con- 
tradiction of  his  belief  proceeds  on  the  assumption  that  there  may  have 
been  such  a  place  and  man  and  meeting,  and  if  so,  her  known  charac- 
ter for  chastity,  her  every-day  walk  and  life,  render  it  impossible  that 
it  could  have  occurred  for  the  foul  purposes  which  he  imputes,  or  oth- 
erwise than  accidentally  and  without  concert,  or  evil  design  in  thought 
or  deed.  But  these  facts,  however  falsely  or  unjustly  he  may  have  rea- 
soned from  them,  or  however  absurd  his  conclusions  as  applied  to  the 
wife  and  contestant  impugned  by  them,  nevertheless  furnished  the 
evidence  which  inspired  his  suspicions,  and  the  ground  upon  which  his 
belief  was  founded.  It  is  conceded  that  the  conclusions  he  drew  from 
the  facts  are  wholly  unwarranted  and  without  any  justification,  indi- 
cating at  least  an  unrelenting,  jealous  disposition;  but  unjust  and  ab- 
surd as  they  may  be,  they  were  not  the  pure  creations  of  a  perverted 
imagination  without  any  foundation  in  reality. 

Delusions  are  conceptions  that  originate  spontaneously  in  the  mind 
without  evidence  of  any  kind  to  support  them,  and  can  be  accounted 
for  on  no  reasonable  hypothesis.  The  mind  that  is  so  disordered  imag- 
ines something  to  exist,  or  imputes  the  existence  of  an  offense,  which 
no  rational  person  would  believe  to  exist  or  to  have  been  committed 
without  some  kind  of  evidence  to  support  it.  They  are  as  baseless  as 
the  fabric  of  a  dream  conjured  into  existence  by  a  disordered  or  per- 
verted imagination  without  any  sort  of  foundation  in  fact.  As  in  Smee 
v.  Smee,  5  Prob.  Div.  84,  the  testator  imagined  himself  to  be  the  son  of 
George  IV.,  and  that  when  he  was  born  a  large  sum  of  money  had 
been  put  in  his  father's  hands  for  him,  but  which  his  father  in  fraud  of 
his  rights  had  distributed  to  his  brothers;  or  as  in  Smith  v.  Tebbitt, 
L.  R.  1  Prob.  &  Div.  398,  the  testatrix  imagined  herself  to  be  one  of 
the  persons  of  the  Trinity,  and  her  chief  legatee  to  be  another.  In 
cases  like  these  the  belief  is  the  offspring  of  a  disordered  mind,  and 
not  induced  by  the  existence  of  any  facts  or  occurrences  which  could 
lend  any  sort  of  countenance  to  it.  The  case  at  bar  is  not  such.  Here 
there  is  a  claim  of  facts  upon  which  the  belief  is  founded;  and  unjust 
and  unfeeling  as  may  be  such  belief,  in  view  of  the  known  character 
of  his  wife  for  chastity,  it  is  not  the  spontaneous  product  of  pure 
fancy,  but  a  grave  error  showing  a  lack  of  judgment  or  a  want  of  rea- 
soning powers,  the  outcome  of  an  oversensitive,  jealous  disposition, 
prone  to  exaggerate  any  trifling  circumstance  with  which  his  wife 
may  be  connected  into  an  unworthy  and  wicked  importance,  and  to 
draw  from  them  conclusions  untenable,  illogical,  and  unworthy  of 
belief. 

There  is  no  doubt  that  the  testator  was  extremely  jealous  of  his  wife, 
and,  like  all  such,  disposed  to  magnify  any  act  or  trifling  occurrence 
into  undue  importance,  and  to  make  it  the  occasion  to  draw  unworthy 
conclusions  of  her  marital  integrity.  The  experience  of  mankind  has 
demonstrated  that  a  wife  may  have  a  spotless  character,  she  may  be 


58  WHO  MAY  BE  A  TESTATOR 

justly  regarded  in  the  estimation  of  her  friends  as  without  moral  blem- 
ish and  worthy  of  all  confidence  and  affection,  and  yet  it  might  happen 
to  her  to  do  some  trivial  act  which  would  pass  unnoticed  by  them,  or 
any  one  except  the  Argus  eyes  of  an  ever- watchful  and  jealous  hus- 
band, who  would  stand  ready  to  draw  base  conclusions  from  it  deroga- 
tory to  her  chastity  and  character.  To  minds  thus  constituted,  some- 
times even  a  look  of  the  wife,  or  perhaps  a  facetious  or  inadvertent 
remark,  or  some  insignificant  circumstance  with  which  she  may  be  as- 
sociated, although  it  be  wholly  innocent,  excites  their  distrust,  and  fills 
them  with  jealous  rage;  for  it  is  as  true  now  as  when  first  uttered  that 
"trifles  light  as  air  are,  to  the  jealous,  confirmations  strong  as  proof  of 
holy  writ."  To  support  the  contention  for  the  contestant,  the  belief  or 
suspicion  the  testator  entertained  of  his  wife's  infidelity  and  the  il- 
legitimacy of  the  children  to  be  an  insane  delusion  must  have  been 
wholly  without  foundation  in  reality,  and  the  mere  figment  of  his  per- 
verted imagination.  But  the  evidence  discloses  that  it  was  formed  on 
an  apparent  cause,  leading  on  his  part  to  a  view  of  his  wife's  conduct 
which  we  have  admitted  was  erroneous,  unjust,  and  unnatural ;  yet  this 
only  shows  an  unfortunate  error  of  judgment  or  a  want  of  reasoning 
power,  but  not  an  absolute  want  of  intellect  upon  the  subject.  The 
conclusion  which  he  drew  from  the  facts  was  untenable  and  erroneous, 
and  showed  that  he  formed  a  bad  judgment  upon  an  insufficient  state 
of  facts,  but  does  not  show  that  his  conclusion  or  belief  was  formed 
without  any  foundation  in  fact  whatever.  *  *  *  Reversed  and  re- 
manded. 


2.  MONOMANIA  18 


RIVARD  v.  RIVARD. 

(Supreme  Court  of  Michigan,  1896.     109  Mich.  98,  66  N.  W.  681,  63  Am.  St. 

Rep.  566.) 

Appeal  by  Charles  Rivard  and  others,  heirs  at  law,  from  an  order  of 
the  probate  court  allowing  the  will  of  Ferdinand  C.  Rivard,  deceased. 
There  was  a  verdict  for  contestants,  and  judgment  setting  aside  the 
will,  from  which  Paul  Rivard  and  Ephraim  Rivard,  executors  and  prcr- 
ponents,  bring  error.  Affirmed. 

GRANT,  J.1*  *  *  Apart  from  the  question  of  undue  influence, 

which  has  already  been  disposed  of,  the  theory  of  the  proponents  is 
that  the  record  contains  no  evidence  of  general  incompetency,  the  re- 
sult of  senile  dementia  or  general  insanity,  or  of  an  insane  delusion 
which  affected  the  testamentary  capacity  of  Mr.  Rivard.  Counsel 

is  For  a  statement  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  40,  41. 
»*  Part  only  of  the  statement  of  facts  and  of  the  opinion  are  given. 


INSANITY   AS   AFFECTING   TESTAMENTARY   CAPACITY  59 

urged,  and  requested  the  court  to  so  charge,  that  Mr.  Rivard  was  com- 
petent to  attend  to  his  business  affairs,  to  make  deeds,  leases,  and  con- 
tracts, and  was  therefore  competent  to  make  a  will,  for  the  reason 
that  it  requires  less  capacity  to  make  a  will  than  to  execute  deeds  and 
contracts.  If  the  alleged  incompetency  depended  upon  senile  dementia 
or  general  insanity,  counsel's  contention,  under  the  instruction  of  the 
court  as  to  his  competency  in  this  regard,  would  be  correct,  and  the 
court  should  have  directed  a  verdict  for  the  proponents.  This  rule  is 
settled,  not  only  by  the  authorities  in  Michigan,  but  is  recognized  by 
courts  generally.  The  difficulty  of  this  contention  is  that  it  does  not 
apply  to  this  case,  and  the  court  eliminated  it  from  the  consideration  of 
the  jury  by  instructing  them  that  Mr.  Rivard  was  competent  to  do  all 
these  things,  and  that  that  competency  continued  to  the  end  of  his  life. 
Counsel  ignore  the  other  well-settled  rule, — that,  while  a  man  may  be 
possessed  of  such  capacity,  he  still  may  be  unable  to  execute  the  will  in 
question,  on  account  of  some  delusion  which  has  beclouded  or  taken 
away  his  judgment  in  regard  to  those  who  are  the  natural  objects  of 
his  bounty.  If  a  testator  disinherits  a  daughter  upon  the  belief  that 
she  is  a  bad  woman  or  that  she  is  not  his  own  offspring,  or  a  son  upon 
the  belief  that  he  is  a  drunkard,  or  his  grandchildren  upon  the  belief 
that  his  son-in-law  has  threatened  to  kill  him,  and  it  appears  that  there 
is  no  foundation  in  fact  for  any  such  beliefs,  and  they  are  shown  to  be 
mere  delusions,  a  will  disinheriting  such  children  and  grandchildren 
is  void,  notwithstanding  he  was  entirely  sane  upon  every  other  subject, 
and  fully  competent  to  manage  his  business  affairs.  Justice  Cooley 
makes  the  distinction  clear  in  his  able  opinion  in  Fraser  v.  Jennison, 
supra,  at  page  231,  42  Mich.,  and  page  882,  3  N.  W. :  "When  the  mon- 
omania is  conceded,  it  is  only  necessary  to  inquire  further  whether  the 
provisions  of  the  will  are  or  are  not  affected  by  it,  and  the  will  stands 
or  falls  by  that  test.  [Citing  a  large  number  of  authorities.]  A  man 
may  believe  himself  to  be  the  Supreme  Ruler  of  the  Universe,  and  nev- 
ertheless make  a  perfectly  sensible  division  of  his  property;  and  the 
courts  will  sustain  it,  when  it  appears  that  his  mania  did  not  dictate  its 
provisions."  The  converse  of  the  proposition  is  true, — that  where  the 
monomania  or  delusion  does  dictate  its  provisions,  and  results  in  the 
disinheritance  of  the  subjects  of  the  delusion,  whom  he  would  other- 
wise remember  in  his  will,  it  cannot  stand.  We  are  riot  dealing  with  a 
testator  who  has  no  children,  but  only  collateral  heirs,  to  whom  he  owes 
no  duty,  legal  or  moral,  but  with  a  parent,  whose  disinheritance  ought, 
in  the  common  sense  of  mankind,  to  be  based  upon  some  good  reason. 
For  this  reason  the  court  rightly  instructed  the  jury  that  they  might 
consider  the  terms  of  the  will,  in  connection  with  the  other  evidence, 
in  determining  the  question  of  the  monomania  or  delusion.  This  is 
peculiarly  true  of  the  present  case.  These  codicils  present  some  pe- 
culiar features,  which  indicate  a  loss  of  memory  and  an  unstable  char- 
acter. There  were  only  2  weeks  between  the  second  and  third;  17  days 
between  the  eighth  and  ninth ;  5  days  between  the  tenth  and  eleventh ; 


GO  WHO  MAY  BE  A  TESTATOR 

the  third  and  fourth  were  made  upon  the  same  day;  the  eighth  and 
ninth  are  identical  in  language.  We  find  no  satisfactory  explanation 
of  the  execution  of  these  two  codicils  within  a  few  days  of  each  other. 
By  the  sixth  codicil  he  took  away  from  his  children  all  control  of  his 
funeral,  burial,  and  selection  of  his  grave  and  the  erection  of  a  monu- 
ment, and  committed  it  to  his  attorney,  Mr.  Ward.  He  disinherited 
his  youngest  daughter.  If  the  testimony  of  the  contestants  is  worthy 
of  belief,  he  was  under  the  insane  delusion  that  she  was  an  inmate  of  a 
house  of  ill  fame.  There  is  no  shadow  of  a  reason  shown  for  this  be- 
lief. If  the  jury  found  that  this  insane  delusion  was  the  cause  of  his 
disinheriting  her,  it  alone  would  be  sufficient  to  invalidate  the  will. 
Raines  v.  Hayden,  95  Mich.  332,  54  N.  W.  911,  35  Am.  St.  Rep. 
566.  The  delusion  in  that  case  was  that  his  wife  was  unfaithful  to 
him,  and  that  Alice,  the  daughter  who  was  disinherited,  was  not  his 
own  child.  *  *  * 

The  delusions  claimed  to  directly  affect  the  will  are  his  belief  that 
his  daughter  Julia,  whom  he  totally  disinherited,  was  an  inmate  of  a 
house  of  ill  fame ;  that  Charles  was  a  drunkard ;  and  that  his  son-in- 
law  Lodewyck,  whose  children  he  left  with  a  mere  pittance,  and  that 
tied  up  with  harsh  restrictions,  had  designs  upon  his  life.  So  far  as 
disclosed  upon  this  record,  there  was  not  the  slightest  foundation  for 
his  belief  in  the  unchastity  of  his  daughter  or  the  designs  of  Lodewyck. 
There  is  evidence  from  which  it  may  be  reasonably  inferred  that  he 
had  some  foundation  for  his  belief  in  the  habits  of  his  son  Charles. 
Charles,  however,  was  a  witness,  and  the  jury  had  a  better  chance  to 
judge  as  to  the  foundation  for  his  father's  treatment,  and  whether  his 
belief  amounted  to  a  delusion.  *  *  *  Affirmed.  . 


VII.  Guardianship  as  Affecting  Testamentary  Capacity  1B 


In  re  AMERICAN  BOARD  OF  COM'RS  FOR  FOREIGN  MIS- 
SIONS. 

(Supreme  Judicial  Court  of  Maine,  1906.    102  Me.  72,  66  Atl.  215.) 

SPEAR,  J.16  This  is  an  appeal  from  the  decree  of  the  judge  of  pro- 
bate of  Cumberland  county  approving  and  allowing  the  last  will  and 
testament,  and  codicils  thereto,  of  Solomon  H.  Chandler.  *  *  * 

The  first  proposition  which  the  appellants  assert  in  derogation  of  Mr. 
Chandler's  mental  capacity  is  the  contention  that  he  was,  at  the  time  of 
executing  the  codicil,  under  legal  guardianship,  and  consequently  in- 

10  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  46. 
*•  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


GUARDIANSHIP   AS   AFFECTING    TESTAMENTARY   CAPACITY  61 

capable  of  making  a  will,  unless  the  restoration  of  his  sanity  be  proved 
beyond  a  reasonable  doubt.  But  such  is  not  the  law.  It  is  a  well-estab- 
lished rule  in  this  state,  and  we  think  in  most  others,  that  while  con- 
finement in  an  insane  asylum,  or  the  disability  of  guardianship,  is  made 
prima  facie  evidence  of  some  mental  incapacity,  it  is  a  rebuttable  pre- 
sumption of  fact,  and  may  be  overthrown  by  a  preponderance  of  the 
evidence.  Of  course,  it  is  evident  that  a  greater  or  less  amount  of  evi- 
dence may  be  required  to  overcome  this  presumption,  depending  upon 
the  nature  and  extent  of  the  incapacity  of  the  person  under  guardian- 
ship, and  varying  with  the  circumstances  of  the  case.  As  was  said  in 
May  v.  Bradlee,  127  Mass.  414,  a  case  where  the  testator  at  the  time 
of  making  his  will  had  been  under  guardianship  as  non  compos  for  26 
years :  "The  testator  was  under  guardianship,  and  that  implies  some 
degree  or  form  of  mental  unsoundness.  The  issue  at  the  trial  was 
whether  that  unsoundness  amounted  to  testamentary  incapacity." 

As  we  interpret  the  law,  the  incapacity  of  guardianship  is  simply  a 
fact,  which  may  be  proven  like  any  other  fact  tending  to  establish  men- 
tal incapacity ;  but  it  does  not  work  an  estoppel  upon  the  proponents. 
The  law  recognizes  that  a  person  may  require  a  guardian  by  reason  of 
incapacity  in  one  particular,  while  in  other  respects  he  may  be  entirely 
competent.  It  is  well  settled  that  a  man  may  be  of  unsound  mind  in 
one  respect  and  not  in  all  respects ;  that  there  may  be  partial  insanity 
of  the  testator,  some  unsoundness  of  mind,  that  does  not  in  any  way 
relate  to  his  property  or  disposition  of  the  same  by  will.  Chapter  69,  § 
26,  Rev.  St.,  recognizes  this  principle,  and  provides  in  part:  "When 
a  person  over  21  years  of  age  is  under  guardianship,  he  is  incapable 
of  disposing  of  his  property  otherwise  than  by  his  last  will."  There- 
fore any  presumption  of  testamentary  incapacity  arising  from  a  decree 
of  unsound  mind  may  be  overcome  by  testimony  as  to  the  facts  and 
circumstances  connected  with  the  execution  of  the  instrument,  as  was 
held  in  Halley  v.  Webster,  21  Me.  461,  in  the  instructions  to  the  jury 
"that,  if  they  were  satisfied  that  previous  to  the  execution  of  the  will 
the  deceased  was  of  unsound  mind  and  memory,  the  burden  of  proof 
would  be  upon  the  proponent  to  prove  that  at  the  time  of  executing  it 
he  was  of  sound  mind  and  memory,  and  also  that  the  lowest  share  of 
mind  and  memory  which  would  enable  a  person  to  transact  the  ordinary 
business  of  life  with  common  intelligence  would  be  sufficient  to  answer 
the  requirements  of  the  law  that  he  should  be  of  sound  and  disposing 
mind  and  memory." 

Under  our  statute  and  the  decisions  of  our  own  court,  the  only  bur- 
den upon  the  proponents  of  a  will  to  overcome  the  disability  imposed 
by  guardianship  is  to  prove  by  a  preponderance  of  the  evidence  that  the 
testator  at  the  time  of  executing  the  will  was  of  sound  mind  in  the  legal 
sense.  As  before  intimated,  if  the  guardianship  was  imposed  on  ac- 
count of  the  impairment  of  some  particular  function  of  the  brain  which 
did  not  materially  interfere  with  the  judgment,  comprehension,  and 
memory,  it  might  require  scarcely  any  evidence  at  all  to  remove  the 


62  WHO   MAY  BE  A  TESTATOR 

effect  of  it.  On  the  other  hand,  if  it  was  imposed  on  account  of  long- 
standing and  chronic  insanity,  involving  the  destruction  of  all  these 
faculties,  no  amount  of  evidence  could  overcome  it. 

Of  the  impairment  of  the  mind  between  these  two  extremes,  the 
amount  of  evidence  required  to  overcome  the  disability  would  depend 
upon  the  facts  and  circumstances  of  each  particular  case ;  so  that,  when 
we  reach  the  final  determination  as  to  mental  capacity  or  incapacity, 
whether  the  person  is  in  an  insane  asylum,  under  guardianship,  or  under 
no  legal  disability,  we  revert  to  the  simple  proposition  of  law  whether 
under  all  the  circumstances  in  the  particular  case  under  consideration, 
the  testator  was  of  sound  and  disposing  mind.  The  proof  must  be 
sufficient  to  overcome  all  disabilities,  however  originating  and  however 
imposed.  When  the  proponents  have  sustained  the  burden  of  proof 
upon  this  proposition,  it  matters  not  how  the  obstacles  to  be  overcome 
were  created.  *  *  *  Appeal  dismissed. 


VIII.  Evidence  Relating  to  Testamentary  Capacity 
1.  BURDEN  OF  PROOF  1T 

CROWNINSHIELD  v.  CROWNINSHIELD. 

(Supreme  Judicial  Court  of  Massachusetts,  1854.    2  Gray,  524.) 

THOMAS,  J.18  This  case  is  before  us  on  the  report  of  the  presiding 
judge.  At  the  time  of  the  execution  of  the  instrument  offered  for  pro- 
bate, the  testator  was  under  guardianship,  as  an  insane  person.  The 
presiding  judge  ruled  that,  under  this  state  of  facts,  the  burden  of 
proof  was  upon  the  party  seeking  probate  of  the  will,  to  show  that,  at 
the  time  of  its  execution,  the  testator  was  of  sound  mind.  The  verdict 
was  that  the  testator  was  of  unsound  mind.  If  the  ruling  of  the  presid- 
ing judge  was  erroneous,  the  verdict  is  to  be  set  aside;  if  right,  judg- 
ment is  to  be  entered  on  the  verdict. 

When  one  dies  owning  real  or  personal  estate,  the  law  fixes  its 
descent  and  distribution.  Under  certain  conditions,  however,  it  gives 
to  such  owner  the  power  to  make  a  disposition  of  his  property,  to  take 
effect  after  his  death.  This  is  done  by  a  last  will  and  testament.  To 
make  such  will,  certain  capacities  are  requisite  in  the  maker,  and  cer- 
tain formalities  for  its  due  execution. 

The  capacities  of  the  maker  are  prescribed  by  Rev.  St.  1836,  c.  62,  §§ 
1,  5.  "Every  person  of  full  age  and  of  sound  mind,  being  seized  in  his 

»T  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  48. 
IB  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


EVIDENCE    RELATING   TO   TESTAMENTARY   CAPACITY  63 

own  right  of  any  lands,  &c.  may  devise  and  dispose  of  same  by  his  last 
will  and  testament  in  writing."  "Every  person  of  full  age  and  of  sound 
mind  may,  by  his  last  will  and  testament  in  writing,  bequeath  and  dis- 
pose of  all  his  personal  estate,  remaining  at  his  decease,  and  all  his 
right  thereto  and  interest  therein." 

The  formalities  are  prescribed  by  the  sixth  section  of  the  same  chap- 
ter. "No  will,  excepting  nuncupative  wills,  shall  be  effectual  to  pass 
any  estate,  whether  real  or  personal,  nor  to  charge,  or  in  any  way  affect 
the  same,  unless  it  be  in  writing,  and  signed  by  the  testator,  or  by  some 
person  in  his  presence  and  by  his  express  direction,  and  attested  and 
subscribed,  in  the  presence  of  the  testator,  by  three  or  more  competent 
witnesses." 

When,  therefore,  a  will  is  offered  for  probate,  to  establish  it,  to  en- 
title it  to  such  probate,  it  must  be  shown  that  the  supposed  testator  had 
the  requisite  legal  capacities  to  make  the  will,  to  wit,  that  he  was  of  full 
age  and  of  sound  mind,  and  that  in  the  making  of  it  the  requisite  for- 
malities have  been  observed.  The  heirs  at  law  rest  securely  upon  the 
statutes  of  descents  and  distribution,  until  some  legal  act  has  been  done 
by  which  their  rights  under  the  statutes  have  been  lost  or  impaired. 

Upon  whom,  then,  is  the  affirmative?  The  party  offering  the  will 
for  probate  says,  in  effect,  This  instrument  was  executed  with  the 
requisite  formalities  by  one  of  full  age  and  of  sound  mind;  and  he 
must  prove  it ;  and  this  is  to  be  done,  not  by  showing  merely  the  instru- 
ment was  in  writing,  that  it  bears  the  signature  of  the  deceased,  and 
that  it  was  attested  in  his  presence  by  three  witnesses ;  but  also  that  it 
was  signed  by  one  capable  of  being  a  testator,  one  to  whom  the  law  had 
given  the  power  of  making  disposition  of  his  property  by  will. 

This  is  the  doctrine  of  the  earliest  case  upon  the  subject  in  our  re- 
ports. Phelps  v.  Hartwell,  1  Mass.  71.  It  was  there  argued  by  the 
appellees  that  the  burden  of  proof  was  with  the  appellants,  opposing 
the  will ;  and  that  it  was  incumbent  on  them  to  show  that  the  testator 
was  not  of  sound  mind  at  the  time  of  the  making  of  the  will.  "But  the 
whole  court'  held  that  the  rule  was  the  same  in  this  case  as  in  all  others. 
The  burden  of  proof  is  always  with  those  who  take  the  affirmative  in 
pleading.  Here  the  appellees  have  the  affirmative,  and  must  therefore 
produce  reasonable  and  satisfactory  evidence  to  the  jury  that  the  testa- 
tor was  sane  at  the  time  of  making  the  will."  In  Blaney  v.  Sargeant, 
in  the  same  volume,  it  was  held  that  the  party  wishing  to  establish  the 
will,  having  the  affirmative,  was  entitled  to  the  opening  and  close.  1 
Mass.  335.  And  such  has  been  the  uniform  practice  of  this  court. 

These  cases  but  recognize  and  confirm  a  familiar  and  well  settled  rule 
of  pleading,  as  of  logic,  that  he  who  affirms  the  existence  of  a  given 
state  of  facts  must  prove  it.  There  may  be  different  modes  and  instru- 
mentalities of  proof ;  but  the  burden  is  on  him  who  affirms,  and  not 
on  him  who  denies. 

The  doctrine  of  the  case  of  Brooks  v.  Barrett,  7  Pick.  94,  is  doubt- 
less, to  some  extent,  in  conflict  with  that  of  the  earlier  cases ;  and  so 


64  WHO  MAT  BE  A  TESTATOE 

it  is,  also,  with  that  of  the  later;  and  as  much  of  the  confusion  existing 
upon  this  subject  may  have  arisen  from  that  case,  it  may  be  well  to 
examine  it  with  some  care. 

In  that  case,  as  in  Phelps  v.  Hartwell  and  Blaney  v.  Sargeant,  it  was 
held  that  the  opening  and  close  were  with  the  executor,  as  the  affirma- 
tive was  with  him.  It  was  also  said  that  "by  our  statute  of  wills,  all 
such  instruments  must  be  offered  for  proof  in  the  probate  office,  and 
the  subscribing  witnesses  are  to  be  there  produced ;  and  these  witnesses 
are  to  testify,  not  only  as  to  the  execution  of  the  will,  but  as  to  the  state 
of  mind  of  the  testator  at  the  time.  Without  such  proof,  no  will  can 
be  set  up.  And  this  agrees  with  the  English  law  on  the  same  subject." 
Thus  far  the  case  is  in  harmony  with  the  earlier  ones.  The  affirmative 
is  upon  the  executor,  and  he  is  to  produce  the  statute  evidence  to  show 
not  only  the  execution  of  the  instrument,  but  "the  state  of  the  mind  of 
the  testator  at  the  time,"  that  is,  of  course,  that  it  was  in  a  sound  state, 
capable  of  making  a  will ;  and,  without  such  proof,  no  will  can  be  set 
up.  "Upon  an  appeal  from  the  decree  of  the  judge  of  probate,  allowing 
or  rejecting  the  will,  it  is  to  be  proved  in  the  appellate  court,  in  the 
same  manner  as  if  first  offered  there  for  probate."  The  issue  of  sanity, 
however,  in  this  court,  is  to  the  jury,  and  not  to  the  presiding  judge. 
Rev.  St.  c.  62,  §  16.  The  party,  then  offering  the  will  in  this  court  for 
probate,  is  to  produce  the  attesting  witnesses  to  show  the  soundness  of 
the  testator's  mind  at  the  time  of  the  execution  of  the  will.  Thus  far 
all  is  plain. 

But  the  court  proceeded  to  say:  "Being  proved,  however,  by  the 
subscribing  witnesses,  both  as  to  its  execution  and  the  sanity  of  the 
testator,  the  will  is  to  be  set  up  and  allowed,  unless  the  party  objecting 
disproves  the  facts  thus  established.  So  that  the  burden  of  proof  shifts 
from  the  executor  to  the  heir  or  other  person  opposing  the  allowance 
of  the  will;  but  in  this,  as  in  all  cases  where  there  is  an  affirmative 
point  to  be  made  out  by  one  party,  he  is  to  open  and  close  to  the  jury. 
If  his  own  evidence,  that  of  the  subscribing  witnesses,  is  deficient,  he 
is  to  make  out  the  affirmative  from  the  whole  case.  If  he  makes  out  his 
case  by  the  statute  evidence,  he  has  only  to  defend  against  the  proof  of 
insanity  produced  by  the  other  party.  And  having  produced  the  statute 
evidence,  if  the  case  is  made  doubtful  by  the  evidence  from  the  other 
side,  the  presumption  of  law  in  favor  of  sanity  must  have  its  effect  in 
the  final  decision."  And  the  court  added  :  "The  will  having  been  suffi- 
ciently proved  by  the  statute  evidence,  it  was  also  rightly  decided  that 
the  burden  of  proof  in  regard  to  insanity  was  upon  the  other  party." 

We  can  perceive  here  no  shifting  of  the  burden  of  proof;  the  issue 
throughout  is  but  one:  Was  the  testator  of  sound  mind?  And  the 
affirmative  of  this  was  upon  the  party  offering  the  will  for  probate. 
Again;  that  issue  is  an  issue  of  fact,  and  is  to  the  jury.  And  how  is 
the  court  to  determine  when  the  will  is  "proved"  or  "sufficiently 
proved"  by  the  subscribing  witnesses,  so  that  the  burden  of  proof 
shifts  from  the  executor  to  the  heir  ?  It  is  a  question  of  the  effect  of 


EVIDENCE    RELATING   TO   TESTAMENTARY   CAPACITY  65 

evidence,  and  could  only  be  solved  by  probing  the  mind  of  each  juror. 
Suppose  the  attesting  witnesses  are  divided  in  opinion;  one  for  the 
sanity  of  the  testator,  one  against,  the  other  doubtful;  or  that  two 
testify  against  the  sanity  of  the  testator,  and  the  third  that  he  was  of 
sound  mind,  and  the  jury  place  greater  confidence  in  the  means  of  ob- 
servation, intelligence,  judgment  and  integrity  of  the  one  than  of  the 
other  two ;  or  that  all  three  testify  (a  case  not  without  precedent),  so 
far  as  it  is  matter  of  opinion,  in  favor  of  the  sanity  of  the  testator,  yet, 
in  view  of  all  the  facts  and  the  circumstances  detailed  by  the  same  wit- 
nesses, the  jury  reach  a  very  different  conclusion.  If  there  could  be  a 
shifting  of  the  burden  upon  a  single  issue,  it  would  be  impossible  to 
tell  when  the  burden  is  to  be  transferred  from  the  one  party  to  the 
other.  *  *  * 

On  the  whole  matter,  we  are  of  opinion,  that  where  a  will  is  offered 
for  probate,  the  burden  of  proof,  in  this  commonwealth,  is  on  the  ex- 
ecutor or  other  person  seeking  such  probate,  to  show  that  the  testator 
was,  at  the  time  of  its  execution  of  sound  mind;  that  if  the  general 
presumption  of  sanity,  applicable  to  other  contracts,  is  to  be  applied  to 
wills,  it  does  not  change  the  burden  of  proof ;  that  the  burden  of  proof 
does  not  shift  in  the  progress  of  the  trial,  the  issue  throughout  being 
one  and  the  same;  and  that  if,  upon  the  whole  evidence,  it  is  left  un- 
certain whether  the  testator  was  of  sound  mind  or  not,  then  it  is  left 
uncertain  whether  there  was  under  the  statute  a  person  capable  of 
making  the  will,  and  the  will  cannot  be  proved.  Judgment  on  the  ver- 
dict 


2.  PRESUMPTION  OF  SANITY 


Appeal  of  STURDEVANT. 
(Supreme  Court  of  Errors  of  Connecticut,  1899.     71  Conn.  392,  42  Atl.  70.) 

BALDWIN,  J.20  *  *  *  Exception  is  taken  to  that  part  of  the 
charge  in  which  the  general  presumption  in  favor  of  sanity  is  described 
''as  one  of  the  proof  factors,"  and  in  its  application  to  the  testamen- 
tary capacity  of  the  testatrix  is  thus  dealt  with :  "The  burden  of  proof 
is,  in  the  first  instance,  upon  the  proponents  of  this  will,  to  show  that 
the  testatrix  was  of  sound  mind  at  the  time  of  making  this  will.  But 
the  law,  gentlemen,  presumes  every  person  to  be  of  sound  mind  until 
the  contrary  is  shown;  and  this  presumption  makes  for  the  propo- 
nents of  the  will,  and  is  of  probative  force  in  their  favor,  and  must  be 
considered  by  you  along  with  the  evidence  oft'ered  by  the  proponents. 

i»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  48. 
20  The  statement  of  facts  is  omitted  and  part  only  of  the  opinion  is  given. 
DUNM.CAS.  WILLS — 5 


66  WHO  MAY  BE  A  TESTATOR 

This  presumption  must  be  cast  into  the  scale  with  the  evidence.  If, 
gentlemen,  using  this  presumption  of  sanity  as  of  probative  force,  and, 
as  suggested,  you  are  satisfied  by  a  fair  preponderance  of  the  evidence 
that  Mrs.  Sturdevant,  the  testatrix,  had  at  the  time  of  making  this 
will  the  kind  of  capacity,  understanding,  and  mental  strength  hereto- 
fore described  to  you,  it  will  be  your  duty  to  find  that  she  was  of  sound 
mind,  and  upon  this  issue  render  a  verdict  for  the  appellees.  If,  on 
the  other  hand,  using  this  presumption  of  sanity  as  of  probative  force 
(and  by  'probative  force,'  gentlemen,  I  mean  a  force  serving  for 
proof),  and,  as  suggested,  you  are  not  satisfied  by  a  fair  preponderance 
of  the  evidence  that  Mrs.  Sturdevant  had  at  the  time  of  executing  this 
will  the  kind  of  mental  strength  and  capacity  which  I  have  been  de- 
scribing to  you,  it  will  be  your  duty  to  find  that  she  was  not  of  sound 
mind ;  and  your  verdict  upon  this  issue  should  be  for  the  appellants, 
who  are  the  contestants  of  this  will." 

It  is  a  settled  rule  of  administrative  jurisprudence  that  a  man  should 
be  assumed  to  be  sane,  in  the  absence  of  evidence  to  the  contrary.  In 
Swift,  Ev.  p.  139  (published  in  1810),  this  is  described  as  a  presump- 
tion of  law.  It  has  been  said  to  be  a  general  maxim  in  legal  reason- 
ing, having  no  peculiar  relation  to  the  law  of  evidence.  Thayer,  Cas. 
Ev.  335.  Be  this  as  it  may,  it  has  a  just  relation  to  the  law  of  trials, 
and  in  civil  causes,  where  sanity  is  in  question,  and  the  evidence  pre- 
ponderates on  neither  side,  ought  to  control  the  verdict.  The  pre- 
sumption of  sanity  is  not  in  itself  evidence,  but  it  may  serve  the  pur- 
pose and  supply  the  place  of  evidence  in  setting  up  something  which 
must  be  overcome  by  proof  to  the  contrary.  State  v.  Smith,  65  Conn. 
283,  285,  31  Atl.  206;  Ward  v.  Insurance  Co.,  66  Conn.  227,  238,  33 
Atl.  902,  50  Am.  St.  Rep.  80.  That  may  have  probative  force  which  is 
not  evidence.  Judicial  notice,  for  instance,  has  it.  "In  its  appropriate 
field,  it  displaces  evidence,  since,  as  it  stands  for  proof,  it  fulfills  the 
object  which  evidence  is  designed  to  fulfill,  and  makes  evidence  un- 
necessary." State  v.  Main,  69  Conn.  123,  136,  37  Atl.  80,  84,  36  L. 
R.  A.  623,  61  Am.  St.  Rep.  30.  The  superior  court  was  right  in  charg- 
ing the  jury  that  the  presumption  of  sanity  must  be  considered  along 
with  the  evidence  offered  by  the  proponents,  and  cast  into  the  scales 
in  determining  on  which  side  the  evidence  preponderated. 

Let  us  take  the  simplest  case  in  which  such  a  point  may  arise.  The 
proponents  of  a  holographic  will  prove  the  handwriting,  and  rest. 
The  contestants  introduce  evidence  of  insanity.  A  metaphysician, 
addressing  an  academy  of  metaphysicians  in  terms  of  precision,  might 
properly  tell  them  that  the  evidence  for  the  proponents  was  the  exist- 
ence of  the  testator  at  the  date  of  the  will,  and  that,  in  balancing  this 
fact  against  the  evidence  of  incapacity  offered  by  the  contestants,  some 
weight  should  be  given  to  the  presumption  which  the  law  prima  facie 
makes,  that  every  man's  mind  is  sound.  Such  an  instruction,  how- 
ever, would  only  confuse  an  ordinary  jury.  It  is  of  no  service  to 
them,  when  called  upon  to  pass  on  the  question  of  testamentary  ca- 


EVIDENCE    RELATING   TO   TESTAMENTARY   CAPACITY  67 

pacity,  to  have  their  attention  directed  to  the  fact,  which  nobody  dis- 
putes, that  the  man  was  alive  when  he  signed  the  will,  or  to  be  told 
that  this  is  to  be  considered  as  evidence  from  which  the  law  draws  a 
certain  inference.  Any  allusion  to  this  intermediate  step  in  proof  can 
be  safely  omitted,  and  the  presumption  of  sanity  brought  directly 
before  them,  without  raising  subtle  distinctions  as  to  its  proper  source. 
The  important  thing  for  the  jury  to  understand  in  the  case  at  bar  was 
that  the  proponents  had  something  to  rely  on  besides  the  positive  evi- 
dence which  they  had  introduced  to  show  testamentary  capacity,  that 
this  was  to  be  considered  together  with  that  evidence,  and  that  it  con- 
sisted in  a  presumption  recognized  in  law  as  based  on  the  general 
facts  of  life,  which  had  probative  force  enough  to  turn  the  scale,  if 
otherwise,  taking  into  account  all  that  either  party  had  put  in  evidence, 
the  balance,  should  seem  to  them  to  stand  equal.  The  charge,  as 
given,  sufficiently  answered  this  demand.  Barber's  Appeal,  63  Conn. 
393,  406,  27  Atl.  973,  22  L.  R.  A.  90. 

Nor  is  there  any  ground  for  the  objection  that  it  gave  an  inadequate 
explanation  of  what  is  sufficient  to  constitute  testamentary  capacity. 
The  jury  was  told  that  it  was  sufficient,  if  the  mind  and  memory  of 
the  testatrix  were  sound  enough  to  enable  her  to  know  and  under- 
stand the  business  in  which  she  was  engaged  at  the  time  when  she  ex- 
ecuted the  paper  in  question.  This  is  the  fundamental  test,  and  it 
was  stated  in  proper  form.  Kimberly's  Appeal,  68  Conn.  428,  439, 
36  Atl.  847,  37  L.  R.  A.  261,  57  Am.  St.  Rep.  101.  There  is  no  error. 
The  other  Judges  concurred. 


3.  TESTATOR'S  CONDITION  BEFORE  AND  AFTER  EXECUTION 

WILL  21 


In  re  WINCH'S  ESTATE. 

(Supreme  Court  of  Nebraska,  1909.     84  Neb.  251,  121  N.  W.  116,  18  Ann. 

Gas.  903.) 

BARNES,  J.22  This  action  involves  the  validity  of  the  will  of  one 
Seth  F.  Winch,  which  was  executed  in  November,  1891.  Probate  of 
the  will  was  resisted  by  the  appellants,  who  are  the  heirs  at  law  of 
the  testator,  upon  the  ground  that  at  the  time  of  its  execution  Winch 
was  insane,  and  was  therefore  incapable  of  making  a  valid  will.  The 
first  trial  in  the  district  court  resulted  in  a  verdict  and  judgment  for 
the  contestants,  which  on  appeal  to  this  court  was  reversed,  and  the 
cause  was  remanded  for  a  new  trial.  79  Neb.  198,  112  N.  W.  293.  A 

21  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  49. 

22  A  portion  of  the  opinion  is  omitted. 


68  WHO  MAY  BE  A  TESTATOR 

second  trial  resulted  in  a  verdict  and  judgment  for  the  proponents,  and 
to  reverse  that  judgment  the  contestants  have  appealed. 

It  was,  and  is,  the  theory  of  the  contestants  that  Seth  F.  Winch,  at 
the  time  he  made  the  will  in  question,  was  afflicted  with  a  mental  dis- 
ease, known  as  "senile  dementia,"  and  was  thereby  rendered  incom- 
petent to  make  a  will,  and  to  that  issue  the  entire  evidence  was  ad- 
dressed. It  appears  that  at  the  commencement  of  the  trial  the  district 
court  announced  the  rule  that  inquiry  as  to  the  mental  condition  and 
habits  of  the  testator  should  not  be  confined  to'  any  particular  time 
before  the  execution  of  the  will,  but  would  be  limited  to  a  period  of 
two  years  after  that  date.  No  complaint  was  made  of  this  order  at 
the  time  it  was  announced ;  but,  as  the  trial  progressed,  the  contestants 
offered  evidence  of  the  mental  condition,  habits,  and  conduct  of  the 
testator  during  the  years  of  1894,  1895,  and  1896,  which  was  ex- 
cluded, and  contestants  excepted.  For  the  rejection  of  this  evidence  it 
is  now  contended  that  the  judgment  of  the  trial  court  should  be  re- 
versed. The  weight  of  authority  seems  to  sustain  the  doctrine  that 
in  will  contests  the  trial  court  may,  in  the  exercise  of  its  discretionary 
power,  limit  the  inquiry  to  a  comparatively  short  time  after  the  execu- 
tion of  the  will.  Howes  v.  Colburn,  165  Mass.  385,  43  N.  E.  125 ; 
White  v.  Graves,  107  Mass.  325,  9  Am.  Rep.  38 ;  Shailer  v.  Bumstead, 
99  Mass.  112;  Commonwealth  v.  Pomeroy,  117  Mass.  143;  Lane  v. 
Moore,  151  Mass.  87,  23  N.  E.  828,  21  Am.  St.  Rep.  430;  Dumangue 
v.  Daniels,  154  Mass.  483,  28  N.  E.  900.  It  follows  that  the  only  ques- 
tion for  us  to  determine  is  whether,  under  the  circumstances  of  this 
case,  the  district  court  was  guilty  of  an  abuse  of  its  discretionary 
power  which  operated  to  the  prejudice  of  the  contestants. 

It  appears  from  the  bill  of  exceptions  that  the  appellants  offered  to 
show  that  Winch  had  been  brought  before  the  insanity  commission  of 
Douglas  county  in  1896,  and  as  a  result  of  an  examination  had  been 
declared  insane;  that  the  contestants  offered  to  show,  by  a  witness 
of  the  name  of  Moore,  certain  acts  and  conduct  of  Mr.  Winch  during 
the  years  1894  and  1895,  and  the  court  directed  the  attention  of  coun- 
sel to  the  rule  which  was  stated  as  follows :  "We  are  limiting  the  tes- 
timony to  not  later  than  November,  1893.  Matters  occurring  after 
that  you  will  omit  from  your  statements."  It  further  appears  that 
the  contestants  sought  to  show  that  the  deceased  in  1895  had  become 
violently  insane,  and  threatened  a  Mrs.  Steen  with  a  butcher  knife. 
Again,  one  Doctor  Tilden  was  called  by  contestants,  who  attempted  to 
show  by  him,  that  as  a  member  of  the  insanity  commission,  he  had 
examined  Winch  in  1896,  and  at  that  time  he  was  afflicted  with  the 
disease  known  as  senile  dementia,  and  as  a  result  thereof  he  was  in- 
sane. These  offers  were  excluded,  and  the  contestants  excepted.  The 
rule  is  well  established  that  in  contests  of  this  kind  the  competency 
of  a  testator  to  make  a  will  is  to  be  decided  by  the  state  of  his  mind  at 
the  time  the  will  was  made;  and,  to  shed  light  on  its  condition  then, 
evidence  showing  the  condition  of  his  mind  long  prior  to,  closely  ap- 


EVIDENCE    RELATING   TO    TESTAMENTARY   CAPACITY  69 

preaching,  and  shortly  subsequent  to,  its  execution  is  competent,  but 
such  evidence  should  be  admitted  for  no  other  purpose.  Von  De  Veld 
v.  Judy,  143  Mo.  348,  44  S.  W.  1117. 

In  Kinne  v.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732,  it  was  said :  "The 
question  of  testamentary  capacity  relates  exclusively  to  the  time  when 
the  will  was  made ;  and,  though  evidence  of  the  testator's  conduct  be- 
fore and  after  that  time  is  admitted,  it  is  received  only  to  show  his 
state  of  mind  at  that  time."  In  Terry  v.  Buffington,  11  Ga.  341,  56 
Am.  Dec.  423,  it  was  said :  "The  general  principle  will  not  be  contro- 
verted that  the  state  of  mental  capacity  is  to  be  determined  by  the  con- 
dition of  the  testator's  mind  at  the  time  of  his  executing  or  acknowl- 
edging the  will ;  for,  notwithstanding  his  incapacity  at  a  prior  or  sub- 
sequent time  should  be  proved,  it  does  not  necessarily  follow  that  he 
was  incompetent  when  the  will  was  made,  especially  if  the  incapacity 
be  subsequent  to  the  execution  of  the  instrument." 

The  contestants  do  not  attempt  to  controvert  this  rule,  but  insist  that 
it  has  no  application  to  the  case  at  bar.  It  is  argued  that,  where  in- 
sanity is  the  result  of  senile  dementia  which  is  once  conclusively  shown 
to  exist,  the  inquiry  as  to  his  acts  and  mental  condition  should  be  ex- 
tended to  the  time  of  the  death  of  the  testator.  To  support  this  argu- 
ment our  attention  is  directed  to  the  case  of  Bever  v.  Spangler,  93 
Iowa,  576,  61  N.  W.  1072.  In  that  case  it  was  held  that,  senile  de- 
mentia being  a  progressive  disease,  it  was  not  error  to  allow  the  in- 
quiry as  to  the  condition  of  the  testator's  mind  to  cover  a  period  of 
six  years  after  the  execution  of  the  will.  That  decision,  however,  does 
not  hold  that  it  would  be  error  to  limit  the  inquiry  to  a  period  of  two 
years  after  the  date  of  the  will. 

We  find  that  in  treating  of  senile  insanity  one  of  our  leading  text- 
writers  makes  use  of  the  following  language :  "Extreme  old  age,  with 
its  attendant  physical  and  intellectual  weaknesses,  does  not,  of  itself, 
incapacitate  the  testator,  and  therefore  it  raises  no  presumption  of  his 
not  having  a  disposing  mind.  It  follows  that  in  this  kind  of  insanity, 
as  in  all  others,  the  exact  subject  of  the  inquiry  is  the  state  of  mind 
at  the  time  of  signing  and  executing  the  will."  Wharton  &  Stille's 
Medical  Jurisprudence,  §  990.  The  test  above  quoted  seems  to  be 
fortified  by  Am.  &  Eng.  Ency.  of  Law,  p.  970,  Browne  v.  Molliston, 
3  Whart.  (Pa.)  129,  and  Underbill  on  Wills,  §  117.  In  Thompson  v. 
Kyner,  65  Pa.  368,  it  was  said:  "An  abnormal  condition  of  mind  is 
never  presumed  when  a  testator  makes  his  will,  unless  a  previous 
aberration  be  shown  of  such  a  nature  as  may  admit  of  a  presumption 
of  recurring  unsoundness  at  any  time."  The  weight  of  authority 
seems  to  be  that  in  cases  of  senile  dementia  there  is  no  uniform  rule 
by  which  to  determine  the  testamentary  capacity  of  the  testator. 
Wharton  &  Stille's  Medical  Jurisprudence,  §  994.  In  such  cases  the 
question  whether  the  testator  has  a  mental  disease  that  affects  his  or 
her  capacity  is  one  of  fact,  to  be  determined  by  the  jury  according  to 
the  rules  applicable  to  other  forms  of  insanity. 


70  WHO  MAY  BE  A  TESTATOR 

As  we  read  the  evidence  in  this  case  the  contestants  failed  to  show 
that  at  any  time  before,  or  at  the  date  of,  the  execution  of  the  will  the 
testator  was  afflicted  with  senile  dementia.  While  it  is  shown  that  he 
was  eccentric,  and  at  times  his  conduct  and  habits  were  somewhat 
peculiar,  yet  it  seems  reasonably  clear  at  the  time  the  will  was  ex- 
ecuted he  was  a  shrewd,  successful  business  man ;  that  he  knew  what 
property  he  had;  that  he  was  aware  of  its  condition  and  extent;  that 
he  remembered  all  of  the  members  of  his  family,  and  that  natural 
objects  of  his  bounty,  and  was  thoroughly  aware  of  the  disposition  he 
proposed  to  make  of  his  estate.  This  being  so,  the  fact  that  at  a  much 
later  date  he  became  a  senile  dement  would  not  of  itself  invalidate  his 
will.  Again,  it  appears  in  Howes  v.  Colburn,  supra,  that  the  court  lim- 
ited the  introduction  of  evidence  tending  to  show  specific  acts  of  un- 
soundness  of  mind  on  the  part  of  the  testator  to  a  period  from  8  years 
before  the  date  of  the  will  to  2%  years  after  its  date.  And  it  was  held 
that  this  was  a  matter  entirely  within  the  discretion  of  the  trial  judge. 

A  careful  examination  of  the  record  satisfies  us  that  this  case  is  not 
within  the  exception  contended  for  by  counsel,  but  should  be  deter- 
mined according  to  the  general  rules  above  stated,  and  that  the  dis- 
trict court  was  not  guilty  of  an  abuse  of  discretion  in  limiting  the 
period  of  inquiry  to  2  years  after  the  execution  of  the  will.  *  *  * 
Affirmed. 


4.  OPINION  28 


HOPKINS  v.  WHEELER. 

(Supreme  Court  of  Rhode  Island,  1900.    21  R.  I.  533,  45  Ati.  551,  79  Am.  St. 

Rep.  819.) 

Action  by  Alonzo  A.  Hopkins  against  Mary  M.  Wheeler,  execu- 
trix, to  contest  the  validity  of  a  will.  From  a  judgment  in  favor  of 
the  validity  of  the  will,  plaintiff  appeals. 

PER  CURIAM.  We  think  the  testimony  of  the  surviving  subscribing 
witness  shows  the  due  execution  of  the  will.  The  point  claimed  by 
the  appellant  is  that  she  did  not  sign  it  in  the  presence  of  the  testatrix, 
but  the  testimony  shows  that,  though  the  will  was  signed  at  the  table 
in  the  parlor  by  the  witness  while  the  testatrix  was  in  bed  in  an  ad- 
joining room,  the  table  was  directly  in  front  of  the  door,  so  that  the 
testatrix  could  have  seen  the  witness  sign,  if  she  had  looked,  and  the 
witness  could  also  have  seen  the  testatrix.  This  was  a  signing,  in 
legal  contemplation,  in  the  presence  of  the  testatrix. 

The  appellant  during  the  trial  asked  a  witness,  who  was  not  an  ex- 
pert on  the  subject  of  mental  capacity,  whether  the  testatrix  was  in 

as  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  50. 


EVIDENCE   RELATING   TO   TESTAMENTARY   CAPACITY  71 

a  condition  to  make  a  will.  The  question  was  objected  to,  and  the  ob- 
jection sustained.  The  appellant  excepted  to  the  ruling  excluding  the 
question.  The  question  was  clearly  inadmissible,  in  that  it  called  for 
the  opinion  of  the  witness  as  to  the  degree  of  mental  capacity  required 
by  law  for  the  making  of  a  will.  The  opinions  which  were  allowed 
to  be  given  by  the  witnesses,  other  than  the  attesting  witness,  were 
based  on  facts  within  the  knowledge  of  the  witnesses,  to  which  they 
had  previously  testified,  and  were  simply  the  conclusions  of  the  wit- 
nesses on  such  facts.  The  uniform  practice  in  this  court  has  been 
to  permit  nonexpert  witnesses  to  testify  to  facts  which  they  had  ob- 
served bearing  on  the  mental  condition  of  the  testator,  and  then  to 
give  their  opinions  as  to  his  mental  condition,  derived  from  those 
facts. 

The  necessity  for  considering  the  question  raised  by  the  appellant  as 
to  the  competency  of  a  legatee  under  a  will  to  testify  as1  to  its  execu- 
tion does  not  exist ;  for,  even  if  the  question  were  properly  before  us, 
as  it  is  not,  no  exception  having  been  taken  as  to  the  competency  of 
the  testimony,  the  due  execution  of  the  will  is  shown  by  the  testimony 
of  the  survivor  of  the  attesting  witnesses. 

New  trial  denied,  and  case  remitted  to  the  common  pleas  division 
for  further  proceedings. 


T2  RESTRAINT    UPON    TESTAMENTARY    DISPOSITION 


RESTRAINT  UPON  POWER  OF  TESTAMENTARY  DISPO- 
SITION—WHO MAY  BE  BENEFICIARIES— WHAT 
MAY  BE  DISPOSED  OF  BY  WILL, 

I.  The  Rule  Against  Perpetuities* 


ANDREWS'  v.  LINCOLN. 

(Supreme  Judicial  Court  of  Maine,  1901.    95  Me.  541,  50  Atl.  898,  56  L.  R  A. 

103.) 

SAVAGE,  J.  Bill  in  equity  to  construe  the  will  of  Matthew  Lincoln, 
late  of  Bangor. 

By  this  will  the  testator  devised  to  trustees  named  all  his  estate,  of 
every  name  and  nature,  except  such  debts  and  demands  as  might  be 
due  him  from  his  son,  Frank  W.  Lincoln,  and  these  he  forgave.  The 
trustees  were  given  full  power  to  manage  and  control  the  real  estate, 
to  pay  taxes  on  the  same,  and  keep  the  same  insured,  to  sell  and  convey 
the  whole  or  any  part  of  the  real  estate,  and  to  sell  or  "permit"  timber. 
It  was  provided  that  the  net  receipts  and  profits  from  the  real  estate, 
and  the  proceeds  of  the  sale  of  any  land,  and  of  the  sales  of  any  growth 
or  timber,  together  with  all  personal  and  mixed  estate,  and  the  proceeds 
of  all  personal  and  mixed  estate,  were  to  be  invested  and  reinvested  by 
the  trustees,  and  allowed  to  accumulate  for  a  period  of  30  years  from 
the  day  of  the  testator's  death.  During  that  period  of  30  years  the 
trustees  were  authorized,  in  their  discretion,  to  pay  from  principal  or 
income  of  the  trust  fund  such  sums  as  they  deemed  expedient  for  the 
education  and  maintenance  of  the  testator's  two  grandchildren,  Harry 
Lincoln  and  Josie  Lincoln,  and  for  the  support  and  maintenance  of  his 
son,  Frank  W.  Lincoln,  and  of  the  latter's  wife,  Addie  Lincoln.  The 
trustees  were  given  the  same  power  and  discretion  during  the  said  30 
years,  as  to  payments  for  the  education  and  maintenance  of  the  issue  of 
either  or  both  of  the  grandchildren,  "should  either  or  both  die  before 
the  expiration  of  the  thirty  years,  leaving  issue  of  his  or  her  body  sur- 
viving." 

The  final  clause  of  the  will  is  as  follows :  "At  the  expiration  of  said 
30  years  the  whole  of  said  fund  or  estate,  in  whatever  form  said  fund 
or  estate  shall  then  be,  shall  become  the  property  of  my  said  two  grand- 
children in  equal  shares,  to  have  and  to  hold  to  them  and  their  heirs 
and  assigns  forever,  or,  if  either  of  said  grandchildren  is  then  deceased 
leaving  no  issue  of  his  or  her  body  living  at  the  time  of  his  or  her  de- 
cease, the  survivor  is  to  take  the  whole  of  said  fund  or  estate,  or,  if 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  51. 


THE   RULE    AGAINST   PERPETUITIES  73 

either  of  said  grandchildren  is  then  deceased  leaving  issue  of  his  or  her 
body  living  at  the  time  of  his  or  her  decease,  such  issue  take  the  parent's 
one-half,  or,  if  both  of  said  grandchildren  are  then  deceased,  both  leav- 
ing issue  of  his  or  her  body  living  at  the  time  of  his  or  her  decease, 
such  issue  take  the  parent's  half,  or,  if  both  of  said  grandchildren  are 
then  deceased,  only  one  of  them  leaving  issue  of  his  or  her  body  living 
at  the  time  of  his  or  her  decease,  such  issue  take  the  whole  of  said 
estate  and  fund,  or,  if  both  of  said  grandchildren  are  then  deceased, 
neither  of  them  leaving  issue  of  his  or  her  body  living  at  the  time  of 
his  or  her  decease,  in  that  event  the  whole  of  said  estate  and  fund  is  to 
become  the  property  of  my  son,  Frank  W.  Lincoln,  to  have  and  to  hold 
to  him  and  his  heirs  and  assigns  forever.  It  being  my  intention  how- 
ever that,  in  event  that  said  estate  and  fund  is  to  become  the  property 
of  said  Frank  W.  in  manner  above  stated,  it  is  to  be  held  by  my  said 
trustees  for  30  years,  as  afore  provided." 

Frank  W.  Lincoln  died  before  the  death  of  the  testator. 

It  is  objected  that  the  trust  attempted  to  be  created  by  this  will  is 
obnoxious  to  the  rule  against  perpetuities,  on  two  grounds — First,  that 
it  unlawfully  postpones  the  vesting  of  the  equitable  estate  in  the  cestuis ; 
and,  secondly,  that  it  provides  for  an  accumulation  of  the  trust  fund 
for  a  longer  period  than  is  permitted  by  law. 

"The  rule  against  perpetuities,"  says  Mr.  Gray,  in  his  work  on  Per- 
petuities, page  378,  "is  not  a  rule  of  construction,  but  a  peremptory 
command  of  the  law.  It  is  not,  like  a  rule  of  construction,  a  test,  more 
or  less  artificial,  to  determine  intention.  Its  object  is  to  defeat  inten- 
tion. Therefore  every  provision  in  a  will  or  settlement  is  to  be  con- 
strued as  if  the  rule  did  not  exist,  and  then  to  the  provision  so  con- 
strued the  rule  is  to  be  remorselessly  applied." 

The  rule  against  perpetuities  does  not  apply  to  vested  estates  or  in- 
terests. It  applies  only  to  remote  future  and  contingent  estates  and 
interests.  It  applies  equally  to  legal  and  to  equitable  estates.  The  law 
permits  the  vesting  of  an  estate  or  interest,  and  also  the  power  of  aliena- 
tion, to  be  postponed  for  the  period  of  a  life  or  lives  in  being,  and  21 
years  and  9  months  thereafter.  If  the  vesting  of  the  interest  is  post- 
poned, or  the  power  of  alienation  is  suspended,  for  a  longer  period,  it 
is  unlawful,  and  the  devise  or  grant  is  void.  But  the  limitation,  in 
order  to  be  valid,  must  be  so  made  that  the  estate  or  interest  not  only 
may,  but  must  necessarily,  vest  within  the  prescribed  period.  If  by  any 
possibility  the  vesting  may  be  postponed  beyond  this  period,  the  limita- 
tion over  will  be  void.  The  rule  concerns  itself  only  with  the  vesting — • 
the  commencing — of  estates,  and  not  with  their  termination.  These 
established  principles  are  all  reiterated,  with  ample  citation  of  author- 
ity, in  the  very  recent  case  of  Pulitzer  v.  Livingston,  89  Me.  359,  36 
Atl.  635.  It  will  not  be  difficult  to  apply  them  to  the  case  at  bar. 

The  testator  plainly  provided  for  an  accumulation  of  his  estate  in 
the  hands  of  trustees  for  the  gross  period  of  30  years,  without  any 
reference  to  any  life  or  lives  in  being.  And  this  is  the  essential  char- 


74  RESTRAINT    UPON    TESTAMENTARY    DISPOSITION 

acter  of  the  trust,  notwithstanding  the  discretionary  authority  given 
the  trustees  to  expend  money  for  the  education,  support,  and  mainte- 
nance of  various  beneficiaries.  It  is,  nevertheless,  an  accumulative 
trust  Such  beneficiaries  took  no  vested  interest.  In  order  to  give 
them  any  interest,  the  trustees  must  exercise  their  discretion.  The 
exercise  of  that  discretion  is  a  condition  precedent.  It  is  entirely  un- 
certain and  contingent  whether  that  discretion  will  be  exercised  within 
the  prescribed  period  or  not.  Gray,  Perp.  §  246. 

As  has  been  already  suggested,  in  this  case,  lives  in  being  do  not  form 
a  part  of  the  period  of  postponement.  It  is  a  gross  term  of  30  years. 
Whenever  lives  in  being  do  not  form  part  of  the  time  of  suspension  or 
postponement,  the  only  period  under  the  rule  against  perpetuities  is  21 
years  absolute.  Kimball  v.  Crocker,  53  Me.  263. 

In  order  to  support  this  trust,  it  is  necessary  that  the  interest  of  the 
cestuis  must  vest  within  the  prescribed  period,  and,  as  there  is  no  inter- 
vening limitation,  it  must  have  vested,  if  at  all,  at  the  death  of  the  tes- 
tator. It  is  not  only  possible  that  it  would  not  so  vest,  but  it  is  certain 
that  it  could  not  vest  until  the  termination  of  30  years.  Not  only  is  it 
uncertain  who  may  take  at  the  end  of  30  years,  for  the  will  provides  for 
several  contingencies,  but  it  is  clear  that  no  cestui  has  any  interest  at 
all  until  the  end  of  30  years.  Not  only  is  the  enjoyment  of  the  fund 
postponed,  but  also  any  interest  in  it  is  postponed  beyond  the  period 
of  21  years.  And  even  the  postponed  interest  is  contingent.  That  the 
interest  is  postponed  clearly  appears  when  we  consider  the  language  of 
the  will.  The  intention  of  the  testator  must  control.  That  intention 
must  be  sought  in  the  language  he  used,  as  legally  interpreted.  The 
testator  here  gives  the  entire  estate  to  the  trustees  for  the  purpose  of 
accumulation.  They  are  to  manage  and  control  it;  they  may  sell  it. 
The  proceeds  of  all  his  estate  they  are  to  invest  and  reinvest,  and  so  on 
for  30  years.  Thus  far  in  the  will  no  estate  is  created  for  any  cestui, 
except  that  which  depended  on  the  discretion  of  the  trustees,  and  which 
we  have  already  noticed.  "Then,"  the  testator  goes  on  to  say,  "at  the 
expiration  of  said  30  years,  the  whole  of  said  fund  or  estate  shall  then 
become  the  property  of  my  said  two  grandchildren,"  under  certain  con- 
tingencies of  life  and  survivorship.  If  the  estate  was  then  to  "become" 
the  grandchildren's,  and  that  is  the  language  of  the  will,  we  think  it 
was  not  vested  in  them  before.  This  case  is  to  be  distinguished  from 
Kimball  v.  Crocker,  supra,  and  other  like  cases,  where  there  was  a  pres- 
ent gift  to  trustees  "for  the  use  and  benefit"  of  cestuis  named.  "These 
words,"  said  Appleton,  C.  J.,  "give  a  present  and  vested  interest  in  the 
fund."  Kimball  v.  Crocker. 

We  hold,  therefore,  that  this  attempted  trust  offends  the  rule  against 
perpetuities,  in  that  it  postpones  the  vesting  of  the  equitable  interest 
of  the  cestuis  que  trustent  beyond  the  period  limited.  No  equitable  in- 
terest can  arise  within  the  limits  of  the  rule.  Therefore  the  whole  trust 
is  bad.  A  resulting  trust  arises  to  the  heir  or  next  of  kin.  Gray,  Perp. 
§§  413,  414. 


THE   RULE   AGAINST   PERPETUITIES  75 

As  the  trust  itself  fails,  it  is  unnecessary  to  consider  its  accumulative 
feature  further  than  to  say  that  it  must  have  been  held  bad,  under  the 
rule  as  given  in  Kimball  v.  Crocker,  supra,  even  if  the  trust  had  been 
otherwise  sustainable.  Thorndike  v.  Loring,  15  Gray  (Mass.)  391. 

The  will  makes  no  other  provisions  for  the  distribution  of  the  estate. 
The  trust  being  void,  nothing  valid  is  left  in  the  will  except  the  provi- 
sion relating  to  debts  due  from  the  testator's  son,  Frank.  All  the  estate, 
therefore,  which  was  devised  and  bequeathed  to  trustees  must  be  treated 
and  administered  as  intestate  property. 

Costs,  including  reasonable  counsel  fees,  may  be  paid  by  the  execu- 
tor, and  charged  by  him  in  his  account  of  administration. 

Decree  accordingly. 


MORGAN  v.  MORGAN. 
(Supreme  Court  of  Rhode  Island,  1898.    20  R.  I.  600,  40  AH.  736.) 

STINESS,  J.  The  complainants,  as  devisees  and  heirs  of  Frank 
Morgan,  Sr.,  of  Newport,  deceased,  ask  that  a  devise  to  the  respondent, 
in  trust,  by  the  will  of  said  Frank  Morgan,  Sr.,  be  declared  void,  as 
creating  a  perpetuity.  The  testator  gave  all  his  property  to  the  respond- 
ent, as  trustee,  to  rent  it,  and  from  the  income  to  pay  taxes,  insurance, 
repairs,  and  incumbrances ;  "and,  when  the  property  is  entirely  free 
from  all  incumbrances,  then  I  give,  devise,  and  bequeath  to  my  son 
Frank  Morgan,  Jr.,  all  the  land  and  buildings  situated  on  Broadway, 
Collins  street,  and  West  Broadway,  adjoining,  and  not  any  other  real 
estate  on  West  Broadway,  to  hold  to  him,  said  Frank  Morgan,  Jr.,  his 
heirs  and  assigns,  forever."  The  income  of  the  rest  of  his  property  he 
gave  to  his  daughters,  complainants,  Mrs.  Elliott  and  Mrs.  Muench- 
inger,  for  life,  and  then  to  their  children.  At  the  death  of  the  testator 
there  were  mortgage  incumbrances  on  real  estate  amounting  to  $12,000. 

The  complainants  claim  that  the  trust,  to  hold  the  property  to  pay  the 
mortgage  debts  out  of  the  net  income,  violates  the  rule  against  per- 
petuities. Although  the  devise  to  the  son  Frank  is  prospective  in  its 
terms,  we  think  that  it  gave  an  equitable  fee  from  the  death  of  the 
testator.  The  law  favors  the  vesting  of  estates,  and  this  devise  was 
equivalent  to  an  immediate  fee,  subject  to  the  incumbrances  with  the 
provision  that  the  income  should  not  be  available  to  the  devisee  until 
the  incumbrances  on  all  the  property  should  be  paid.  The  entire  bene- 
ficial interest  was  to  go  to  him  and  his  heirs,  subject  to  a  postponement 
in  the  receipt  of  income.  In  this  respect  the  case  is  like  Staples  v. 
D'Wolf,  8  R.  I.  74;  Kelly  v.  Dike,  Id.  436;  Rogers  v.  Rodgers,  11  R. 
1.38. 

This  being  so,  the  next  question  is  whether  the  possibility  that  the  net 
income  may  not  be  sufficient  to  pay  the  mortgages  within  the  time  fixed 
by  law  for  a  perpetuity  makes  the  provision  void.  Most,  if  not  all,  of 
the  cases  relied  on  by  the  complainants  are  of  the  kind  where  a  future 


76  RESTRAINT    UPON   TESTAMENTARY    DISPOSITION 

estate,  beyond  the  lawful  period,  is  given,  which  has  been  held  void  for 
remoteness.  But  in  this  case  a  present  interest  is  given,  and  the  reten- 
tion of  income  is  for  the  purpose  of  paying  debts.  This  brings  the 
case  within  the  exception  mentioned  in  1  Jarm.  Wills,  p.  275 :  "The 
invalidity  of  such  trusts  admits,  however,  of  one  exception,  namely, 
where  the  fund  arising  therefrom  is  to  be  applied  in  discharge  of  in- 
cumbrances  affecting  the  estate;  for  then  they  only  provide  a  particu- 
lar mode  of  paying  incumbrances,  which,  in  case  of  a  mortgage,  the 
incumbrancer  himself  might  adopt  by  entering  into  receipt  of  the  rents 
and  profits,  and  may  at  any  time  be  put  an  end  to,  either  by  the  owner 
paying  the  incumbrance,  or  the  incumbrancer  enforcing  his  claim 
against  the  corpus  of  the  property.  Thus  there  is  no  restraint  on  aliena- 
tion." In  this  quotation  the  word  "incumbrancer"  is  evidently  a  mis- 
print for  "incumbrancee."  Mr.  Gray,  in  the  Rule  against  Perpetuities, 
§  676,  says :  "Income  is  sometimes  directed  to  be  accumulated  for  the 
payment  of  the  testator's  debts.  This  gives  the  creditors  an  immediate 
present  charge  on  the  property,  and  they  can  stop  the  accumulation  at 
once.  The  direction  to  accumulate,  being,  therefore,  destructible,  is  not 
void  for  remoteness."  Lord  Langdale,  master  of  the  rolls,  in  Bateman 
v.  Hotchkin,  10  Beav.  426,  remarked  that,  while  he  thought  this  a  very 
indiscreet  mode  of  raising  money  for  the  payment  of  debts,  it  did  not 
appear  to  be  unlawful,  and  that  it  was  mitigated  by  the  power  which 
mortgagees  have  to  enforce  payment  or  foreclose  the  estate,  without 
regard  to  the  trust  for  accumulation.  See,  also,  Bacon  v.  Proctor,  1 
Turn.  &  R.  31,  40 ;'  Tewart  v.  Lawson,  L.  R.  18  Eq.  490.  An  additional 
reason  for  the  exception  from  the  rule  against  perpetuities  of  a  trust 
to  pay  off  incumbrances  appears  in  the  fact  that  the  devisee  receives 
the  benefit  of  the  income  in  the  reduction  of  the  incumbrances  on  his 
estate.  To  the  extent,  therefore,  that  the  trust  is  not  void  as  creating 
a  perpetuity,  which  is  the  only  question  made  at  the  hearing,  and,  as 
we  understand  it,  by  the  bill,  the  demurrer  would  be  sustained ;  but  as 
the  demurrer  is  to  the  whole  bill,  and  as  the  complainants  are  clearly 
entitled  to  an  account  from  the  trustee,  the  demurrer  must  be  overruled. 


BENEFICIARY  INCOMPETENT  BY  CONSIDERATIONS  OF  POLICY  77 


II.  Beneficiary  Incompetent  by  Considerations  of  Policy  * 


RIGGS  v.  PALMER. 

(Court  of  Appeals  of  New  York,  1889.    115  N.  Y.  506,  22  N.  E.  188,  5  L.  R.  A. 
340,  12  Am.  St.  Rep.  819.) 

EARL,  J.  On  the  13th  day  of  August,  1880,  Francis  B.  Palmer  made 
his  last  will  and  testament,  in  which  he  gave  small  legacies  to  his  two 
daughters,  Mrs.  Riggs  and  Mrs.  Preston,  the  plaintiffs  in  this  action, 
and  the  remainder  of  his  estate  to  his  grandson,  the  defendant  Elmer 
E.  Palmer,  subject  to  the  support  of  Susan  Palmer,  his  mother,  with  a 
gift  over  to  the  two  daughters,  subject  to  the  support  of  Mrs.  Palmer 
in  case  Elmer  should  survive  him  and  die  under  age,  unmarried,  and 
without  any  issue.  The  testator,  at  the  date  of  his  will,  owned  a  farm, 
and  considerable  personal  property.  He  was  a  widower,  and  thereafter, 
in  March,  1882,  he  was  married  to  Mrs.  Bresee,  with  whom,  before  his 
marriage,  he  entered  into  an  antenuptial  contract,  in  which  it  was 
agreed  that  in  lieu  of  dower  and  all  other  claims  upon  his  estate  in  case 
she  survived  him  she  should  have  her  support  upon  his  farm  during 
her  life,  and  such  support  was  expressly  charged  upon  the  farm.  At 
the  date  of  the  will,  and  subsequently  to  the  death  of  the  testator,  Elmer 
lived  with  him  as  a  member  of  his  family,  and  at  his  death  was  16  years 
old.  He  knew  of  the  provisions  made  in  his  favor  in  the  will,  and, 
that  he  might  prevent  his  grandfather  from  revoking  such  provisions, 
which  he  had  manifested  some  intention  to  do,  and  to  obtain  the  speedy 
enjoyment  and  immediate  possession  of  his  property,  he  willfully  mur- 
dered him  by  poisoning  him.  He  now  claims  the  property,  and  the 
sole  question  for  our  determination  is,  can  he  have  it  ? 

The  defendants  say  that  the  testator  is  dead ;  that  his  will  was  made 
in  due  form,  and  has  been  admitted  to  probate ;  and  that  therefore  it 
must  have  effect  according  to  the  letter  of  the  law.  It  is  quite  true  that 
statutes  regulating  the  making,  proof,  and  effect  of  wills  and  the  devo- 
lution of  property,  if  literally  construed,  and  if  their  force  and  effect 
can  in  no  way  and  under  no  circumstances  be  controlled  or  modified, 
give  this  property  to  the  murderer.  The  purpose  of  those  statutes  was 
to  enable  testators  to  dispose  of  their  estates  to  the  objects  of  their 
bounty  at  death,  and  to  carry  into  effect  their  final  wishes  legally  ex- 
pressed ;  and  in  considering  and  giving  effect  to  them  this  purpose  must 
be  kept  in  view.  It  was  the  intention  of  the  law-makers  that  the  donees 
in  a  will  should  have  the  property  given  to  them.  But  it  never  could 
have  been  their  intention  that  a  donee  who  murdered  the  testator  to 
make  the  will  operative  should  have  any  benefit  under  it.  If  such  a 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  54. 


78  RESTRAINT    UPON   TESTAMENTARY    DISPOSITION 

case  had  been  present  to  their  minds,  and  it  had  been  supposed  neces- 
sary to  make  some  provision  of  law  to  meet  it,  it  cannot  be  doubted  that 
they  would  have  provided  for  it. 

It  is  a  familiar  canon  of  construction  that  a  thing  which  is  within 
the  intention  of  the  makers  of  a  statute  is  as  much  within  the  statute 
as  if  it  were  within  the  letter ;  and  a  thing-  which  is  within  the  letter  of 
the  statute  is  not  within  the  statute  unless  it  be  within  the  intention  of 
the  makers.  The  writers  of  laws  do  not  always  express  their  intention 
perfectly,  but  either  exceed  it  or  fall  short  of  it,  so  that  judges  are  to 
collect  it  from  probable  or  rational  conjectures  only,  and  this  is  called 
"rational  interpretation;"  and  Rutherford,  in  his  Institutes,  (page 
420,)  says :  "Where  we  make  use  of  rational  interpretation,  sometimes 
we  restrain  the  meaning  of  the  writer  so  as  to  take  in  less,  and  some- 
times we  extend  or  enlarge  his  meaning  so  as  to  take  in  more,  than  his 
words  express."  Such  a  construction  ought  to  be  put  upon  a  statute  as 
will  best  answer  the  intention  which  the  makers  had  in  view,  for  qui 
haeret  in  litera,  haeret  in  cortice.  In  Bac.  Abr.  "Statutes,"  1,  5;  Puff. 
Law  Nat.  bk.  5,  c.  12 ;  Ruth.  Inst.  422,  427,  and  in  Smith's  Commenta- 
ries, 814,  many  cases  are  mentioned  where  it  was  held  that  matters 
embraced  in  the  general  words  of  statutes  nevertheless  were  not  within 
the  statutes,  because  it  could  not  have  been  the  intention  of  the  law- 
makers that  they  should  be  included.  They  were  taken  out  of  the  stat- 
utes by  an  equitable  construction;  and  it  is  said  in  Bacon:  "By  an 
equitable  construction  a  case  not  within  the  letter  of  a  statute  is  some- 
times holden  to  be  within  the  meaning,  because  it  is  within  the  mischief 
for  which  a  remedy  is  provided.  The  reason  for  such  construction  is 
that  the  law-makers  could  not  set  down  every  case  in  express  terms. 
In  order  to  form  a  right  judgment  whether  a  case  be  within  the  equity 
of  a  statute,  it  is  a  good  way  to  suppose  the  law-maker  present,  and 
that  you  have  asked  him  this  question :  Did  you  intend  to  comprehend 
this  case  ?  Then  you  must  give  yourself  such  answer  as  you  imagine 
he,  being  an  upright  and  reasonable  man,  would  have  given.  If  this  be 
that  he  did  mean  to  comprehend  it,  you  may  safely  hold  the  case  to 
be  within  the  equity  of  the  statute ;  for  while  you  do  no  more  than  he 
would  have  done,  you  do  not  act  contrary  to  the  statute,  but  in  con- 
formity thereto."  9  Bac.  Abr.  248. 

In  some  cases  the  letter  of  a  legislative  act  is  restrained  by  an  equita- 
ble construction ;  in  others,  it  is  enlarged ;  in  others,  the  construction 
is  contrary  to  the  letter.  The  equitable  construction  which  restrains 
the  letter  of  a  statute  is  denned  by  Aristotle  as  frequently  quoted  in 
this  manner:  ^Equitas  est  correctio  legis  generaliter  latae  qua  parte 
deficit.  If  the  lawmakers  could,  as  to  this  case,  be  consulted,  would 
they  say  that  they  intended  by  their  general  language  that  the  property 
of  a  testator  or  of  an  ancestor  should  pass  to  one  who  had  taken  his  life 
for  the  express  purpose  of  getting  his  property?  In  1  Bl.  Comm.  91, 
the  learned  author,  speaking  of  the  construction  of  statutes,  says :  "If 
there  arise  out  of  them  collaterally  any  absurd  consequences  manifestly 


BENEFICIARY  INCOMPETENT  BY  CONSIDERATIONS  OF  POLICY  79 

contradictory  to  common  reason,  they  are  with  regard  to  those  collat- 
eral consequences  void.  *  *  *  Where  some  collateral  matter  arises 
out  of  the  general  words,  and  happens  to  be  unreasonable,  there  the 
judges  are  in  decency  to  conclude  that  this  consequence  was  not  fore- 
seen by  the  parliament,  and  therefore  they  are  at  liberty  to  expound  the 
statute  by  equity,  and  only  quoad  hoc  disregard  it ;"  and  he  gives  as  an 
illustration,  if  an  act  of  parliament  gives  a  man  power  to  try  all  causes 
that  arise  within  his  manor  of  Dale,  yet,  if  a  cause  should  arise  in  which 
he  himself  is  party,  the  act  is  construed  not  to  extend  to  that,  because 
it  is  unreasonable  that  any  man  should  determine  his  own  quarrel. 
There  was  a  statute  in  Bologna  that  whoever  drew  blood  in  the  streets 
should  be  severely  punished,  and  yet  it  was  held  not  to  apply  to  the 
case  of  a  barber  who  opened  a  vein  in  the  street.  It  is  commanded  in 
the  decalogue  that  no  work  shall  be  clone  upon  the  Sabbath,  and  yet 
giving  the  command  a  rational  interpretation  founded  upon  its  design 
the  Infallible  Judge  held  that  it  did  not  prohibit  works  of  necessity, 
charity,  or  benevolence  on  that  day. 

What  could  be  more  unreasonable  than  to  suppose  that  it  was  the 
legislative  intention  in  the  general  laws  passed  for  the  orderly,  peace- 
able, and  just  devolution  of  property  that  they  should  have  operation 
in  favor  of  one  who  murdered  his  ancestor  that  he  might  spqedily  come 
into  the  possession  of  his  estate?  Such  an  intention  is  inconceivable. 
We  need  not,  therefore,  be  much  troubled  by  the  general  language  con- 
tained in  the  laws.  Besides,  all  laws,  as  well  as  all  contracts,  may  be 
controlled  in  their  operation  and  effect  by  general,  fundamental  maxims 
of  the  common  law.  No  one  shall  be  permitted  to  profit  by  his  own 
fraud,  or  to  take  advantage  of  his  own  wrong,  or  to  found  any  claim 
upon  his  own  iniquity,  or  to  acquire  property  by  his  own  crime.  These 
maxims  are  dictated  by  public  policy,  have  their  foundation  in  universal 
law  administered  in  all  civilized  countries,  and  have  nowhere  been 
superseded  by  statutes.  They  were  applied  in  the  decision  of  the  case 
of  Insurance  Co.  v.  Armstrong,  117  U.  S.  599,  6  Sup.  Ct  877,  29  L. 
Ed.  997.  There  it  was  held  that  the  person  who  procured  a  policy  upon 
the  life  of  another,  payable  at  his  death,  and  then  murdered  the  assured 
to  make  the  policy  payable,  could  not  recover  thereon.  Mr.  Justice 
Field,  writing  the  opinion,  said:  "Independently  of  any  proof  of  the 
motives  of  Hunter  in  obtaining  the  policy,  and  even  assuming  that  they 
were  just  and  proper,  he  forfeited  all  rights  under  it  when,  to  secure 
its  immediate  payment,  he  murdered  the  assured.  It  would  be  a  re- 
proach to  the  jurisprudence  of  the  country  if  one  could  recover  insur- 
ance money  payable  on  the  death  of  a  party  whose  life  he  had  feloni- 
ously taken.  As  well  might  he  recover  insurance  money  upon  a  build- 
ing that  he  had  willfully  fired."  These  maxims,  without  any  statute 
giving  them  force  or  operation,  frequently  control  the  effect  and  nullify 
the  language  of  wills.  A  will  procured  by  fraud  and  deception,  like 
any  other  instrument,  may  be  decreed  void,  and  set  aside;  and  so  a 
particular  portion  of  a  will  may  be  excluded  from  probate,  or  held  in- 


80  RESTRAINT    UPON   TESTAMENTARY    DISPOSITION 

operative,  if  induced  by  the  fraud  or  undue  influence  of  the  person  in 
whose  favor  it  is.  Allen  v.  McPherson,  1  H.  L.  Cas.  191 ;  Harrison's 
Appeal,  48  Conn.  202.  So  a  will  may  contain  provisions  which  are 
immoral,  irreligious,  or  against  public  policy,  and  they  will  be  held  void. 

Here  there  was  no  certainty  that  this  murderer  would  survive  the 
testator,  or  that  the  testator  would  not  change  his  will,  and  there  was 
no  certainty  that  he  would  get  this  property  if  nature  was  allowed  to 
take  its  course.  He  therefore  murdered  the  testator  expressly  to  vest 
himself  with  an  estate.  Under  such  circumstances,  what  law,  human 
or  divine,  will  allow  him  to  take  the  estate  and  enjoy  the  fruits  of  his 
crime  ?  The  will  spoke  and  became  operative  at  the  death  of  the  tes- 
tator. He  caused  that  death,  and  thus  by  his  crime  made  it  speak  and 
have  operation.  Shall  it  speak  and  operate  in  his  favor?  If  he  had 
met  the  testator,  and  taken  his  property  by  force,  he  would  have  had 
no  title  to  it.  Shall  he  acquire  title  by  murdering  him  ?  If  he  had  gone 
to  the  testator's  house,  and  by  force  compelled  him,  or  by  fraud  or  un- 
due influence  had  induced  him,  to  will  him  his  property,  the  law  would 
not  allow  him  to  hold  it.  But  can  he  give  effect  and  operation  to  a  will 
by  murder,  and  yet  take  the  property  ?  To  answer  these  questions  in 
the  affirmative  it  seems  to  me  would  be  a  reproach  to  the  jurisprudence 
of  our  state,  and  an  offense  against  public  policy.  Under  the  civil  law, 
evolved  from  the  general  principles  of  natural  law  and  justice  by  many 
generations  of  jurisconsults,  philosophers,  and  statesmen,  one  cannot 
take  property  by  inheritance  or  will  from  an  ancestor  or  benefactor 
whom  he  has  murdered.  Dom.  Civil  Law,  pt.  2,  bk.  1,  tit.  1,  §  3 ;  Code 
Nap.  §  727;  Mack.  Rom.  Law,  530,  550. 

In  the  Civil  Code  of  Lower  Canada  the  provisions  on  the  subject  in 
the  Code  Napoleon  have  been  substantially  copied.  But,  so  far  as  1 
can  find,  in  no  country  where  the  common  law  prevails  has  it  been 
deemed  important  to  enact  a  law  to  provide  for  such  a  case.  Our  re- 
visers and  law-makers  were  familiar  with  the  civil  law,  and  they  did 
not  deem  it  important  to  incorporate  into  our  statutes  its  provisions 
upon  this  subject.  This  is  not  a  casus  omissus.  It  was  evidently  sup- 
posed that  the  maxims  of  the  common  law  were  sufficient  to  regulate 
such  a  case,  and  that  a  specific  enactment  for  that  purpose  was  not 
needed.  For  the  same  reasons  the  defendant  Palmer  cannot  take  any 
of  this  property  as  heir.  Just  before  the  murder  he  was  not  an  heir, 
and  it  was  not  certain  that  he  ever  would  be.  He  might  have  died  be- 
fore his  grandfather,  or  might  have  been  disinherited  by  him.  He  made 
himself  an  heir  by  the  murder,  and  he  seeks  to  take  property  as  the 
fruit  of  his  crime.  What  has  before  been  said  as  to  him  as  legatee 
applies  to  him  with  equal  force  as  an  heir.  He  cannot  vest  himself 
with  title  by  crime.  My  view  of  this  case  does  not  inflict  upon  Elmer 
any  greater  or  other  punishment  for  his  crime  than  the  law  specifies. 
It  takes  from  him  no  property,  but  simply  holds  that  he  shall  not  ac- 
quire property  by  his  crime,  and  thus  be  rewarded  for  its  commission. 


BENEFICIARY  INCOMPETENT  BY  CONSIDERATIONS  OF  POLICY  81 

Our  attention  is  called  to  Owens  v.  Owens,  100  N.  C.  240,  6  S.  E. 
794,  as  a  case  quite  like  this.  There  a  wife  had  been  convicted  of  being 
an  accessory  before  the  fact  to  the  murder  of  her  husband,  and  it  was 
held  that  she  was  nevertheless  entitled  to  dower.  I  am  unwilling  to 
assent  to  the  doctrine  of  that  case.  The  statutes  provide  dower  for  a 
wife  who  has  the  misfortune  to  survive  her  husband,  and  thus  lose  his 
support  and  protection.  It  is  clear  beyond  their  purpose  to  make  provi- 
sion for  a  wife  who  by  her  own  crime  makes  herself  a  widow,  and 
willfully  and  intentionally  deprives  herself  of  the  support  and  protec- 
tion of  her  husband.  As  she  might  have  died  before  him,  and  thus 
never  have  been  his  widow,  she  cannot  by  her  crime  vest  herself  with 
an  estate.  The  principle  which  lies  at  the  bottom  of  the  maxim  volenti 
non  fit  injuria  should  be  applied  to  such  a  case,  and  a  widow  should  not, 
for  the  purpose  of  acquiring,  as  such,  property  rights,  be  permitted  to 
allege  a  widowhood  which  she  has  wickedly  and  intentionally  created. 

The  facts  found  entitled  the  plaintiffs  to  the  relief  they  seek.  The 
error  of  the  referee  was  in  his  conclusion  of  law.  Instead  of  granting 
a  new  trial,  therefore,  I  think  the  proper  judgment  upon  the  facts 
found  should  be  ordered  here.  The  facts  have  been  passed  upon  twice 
with  the  same  result, — first  upon  the  trial  of  Palmer  for  murder,  and 
then  by  the  referee  in  this  action.  We  are  therefore  of  opinion  that 
the  ends  of  justice  do  not  require  that  they  should  again  come  in  ques- 
tion. The  judgment  of  the  general  term  and  that  entered  upon  the 
report  of  the  referee  should  therefore  be  reversed,  and  judgment  should 
be  entered  as  follows :  That  Elmer  E.  Palmer  and  the  administrator  be 
enjoined  from  using  any  of  the  personalty  or  real  estate  left  by  the 
testator  for  Elmer's  benefit ;  that  the  devise  and  bequest  in  the  will  to 
Elmer  be  declared  ineffective  to  pass  the  title  to  him ;  that  by  reason 
of  the  crime  of  murder  committed  upon  the  grandfather  he  is  deprived 
of  any  interest  in  the  estate  left  by  him ;  that  the  plaintiffs  are  the  true 
owners  of  the  real  and  personal  estate  left  by  the  testator,  subject 
to  the  charge  in  favor  of  Elmer's  mother  and  the  widow  of  the  testator, 
under  the  antenuptial  agreement,  and  that  the  plaintiffs  have  costs  in 
all  the  courts  against  Elmer.  All  concur,  except  GRAY,  J.,  who  reads 
dissenting  opinion,  and  DANFORTH,  J.,  concurs.3 

a  The  dissenting  opinion  of  Gray,  J.,  is  omitted. 
DUNM.CAS.WILLS — 6 


82  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

MISTAKE,  FRAUD,  AND  UNDUE  INFLUENCE 
I.  Mistake1 

In  re  GOODS  OF  BOEHM. 
(High  Court  of  Justice,  Probate  Division.     [1891]  P.  247.) 

Motion  for  a  grant  of  probate  of  a  will  with  certain  alterations. 

The  testator,  Sir  J.  E.  Boehm,  R.  A.,  died  December  24,  1890,  leav- 
ing a  will  duly  executed  bearing  date  December  12,  1889. 

The  instructions  for  the  preparation  of  the  will  were  given  to  Mr. 
Mills,  an  old  friend,  who  conveyed  them  to  the  testator's  solicitor,  by 
whom  they  were  laid  before  counsel  to  prepare  a  draft  will. 

From  the  affidavits  of  these  gentlemen  it  appeared  that  by  his  in- 
structions the  testator  directed  that  two  sums  of  £10,000  each,  part  of  a 
specific  sum  of  £24,000  dealt  with  in  the  will,  should  be  set  apart  to  be 
settled  to  the  use  and  benefit  of  his  two  unmarried  daughters,  Miss 
Georgiana  Boehm  and  Miss  Florence  Boehm,  and  their  children, 
after  the  death  of  his  wife,  who  was  to  have  the  life  interest  if  she 
survived  him.  By  inadvertence  the  conveyancing  counsel  in  settling 
the  draft  inserted  the  word  "Georgiana"  in  both  the  clauses  of  the  will 
relating  to  the  gifts  to  the  unmarried  daughters,  and  omitted  the  word 
"Florence"  altogether;  so  that  there  were  two  gifts  of  £10,000  to  Miss 
Georgiana  Boehm,  while  Miss  Florence  Boehm  was  left  totally  unpro- 
vided for.  This  error  was  repeated  in  the  engrossed  copy  of  the  draft 
which  was  ultimately  executed  by  the  testator.  The  draft  of  the  will, 
together  with  an  epitome  of  its  provisions,  were  taken  to  the  testator 
by  Mr.  Mills.  The  draft  was  never  read  over  to  him,  but  the  epitome 
was.  In  the  epitome  the  names  "Georgiana"  and  "Florence"  were  ac- 
curately given,  and  the  testator  read  it  over  and  made  corrections  in  it. 
The  testator  did  not  read  the  will  over  at  the  time  of  execution,  and  it 
was  perfectly  certain  that  his  attention  was  not  drawn  to  the  mistake, 
which  was  only  discovered  after  his  death. 

JEUNE,  J.  I  am  asked  to  grant  probate  of  the  will  of  Sir  Joseph 
Edgar  Boehm  with  the  word  "Georgiana"  omitted  in  two  places,  in 
what,  on  the  face  of  the  will,  professes  to  be  a  gift  in  her  favour.  I 
had  some  doubt  about  deciding  this  matter  on  motion;  but  as  repre- 
sentatives of  all  existing  interests  agreed  to  its  being  so  decided,  and 
future  interests  will  be  protected  rather  than  prejudiced  by  this  mode 
of  dealing  with  this  question,  I  see  no  objection  to  adopting  it.  It  is 
clear  from  the  evidence  that  the  testator  intended  to  give  £20,000  in 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  56,  57. 


MISTAKE  83 

equal  moieties  to  trustees  for  each  of  his  daughters,  Florence  and 
Georgiana,  and  the  instructions  for  the  will  correctly  expressed  this; 
but  the  draftsman,  instead  of  inserting  in  the  draft  of  the  will  a  clause 
of  gift  in  favour  of  Georgiana,  and  then  a  similar  clause  in  favour  of 
Florence,  inserted  the  name  of  Georgiana  in  the  second  clause  as  well 
as  in  the  first.  It  is  proved  that  the  testator  did  not  read  or  have  read 
over  to  him  the  will,  but  did  read  what  professed  to  be  an  epitome  of 
it,  such  epitome  being  in  accordance  with  the  instructions,  and  cor- 
rectly representing  the  testator's  intentions.  In  a  sense,  therefore,  the 
word  "Georgiana"  was  clearly  inserted  in  the  two  places  in  question  in 
error,  though  the  real  and  complete  mistake  was  in  not  inserting  Flor- 
ence in  place  of  Georgiana.  In  view  of  the  case  of  Morrell  v.  Morrell, 
7  P.  D.  68,  following  Fulton  v.  Andrew,  Law  Rep.  7  H.  L.  448,  and 
the  earlier  authority  of  In  the  Goods  of  Duane,  2  S.  &  T.  590,  mistake 
is  to  be  regarded  as  a  question  of  fact  depending  on  the  circumstances 
of  each  case,  and  there  is  now  no  difficulty,  in  circumstances  such  as 
those  of  the  above  cases,  in  striking  out  a  clause,  or  a  single  word,  if 
shewn  to  have  been  inserted  by  mistake.  Indeed,  in  the  present  case 
no  such  difficulty  occurs  as  arose  in  Fulton  v.  Andrew,  Law  Rep.  7  H. 
L.  448,  in  reference  to  the  decisions  in  Atter  v.  Atkinson,  Law  Rep. 
1  P.  &  D.  665,  Guardhouse  v.  Blackburn,  Law  Rep.  1  P.  &  D.  109,  and 
Harter  v.  Harter,  Law  Rep.  3  P.  &  D.  11,  from  a  presumption  of 
knowledge  and  approval  arising  from  the  reading  of,  or  hearing  read, 
a  will  by  a  competent  testator,  because  here  the  evidence  is  that  the 
testator,  relying  on  the  epitome,  never  read  or  heard  the  will  read. 

My  difficulty  at  the  argument  was  that,  in  the  above  cases,  to  strike 
out  the  word  or  words  inserted  in  error  left  the  will  what  the  testator 
intended  it  to  be.  Here,  to  strike  out  the  word  "Georgiana"  and  to 
leave  a  blank  in  its  place  does  not  leave  the  will  what  the  testator  in- 
tended it  should  be,  and  I  am  not  aware  that  there  is  any  exact  authori- 
ty for  striking  a  word  out  of  a  will  under  these  circumstances.  This 
case  would  seem  to  be  the  same  as  it  would  have  been  in  Morrell  v. 
Morrell,  7  P.  D.  68,  if  the  jury  had  found  that  the  mistake  consisted 
not  merely  in  having  put  in  the  word  "forty,"  but  in  not  having  put  in 
the  proper  number,  "four  hundred,"  instead  of  "forty" — in  fact,  had 
answered  the  second  question  put  to  them  differently  from  the  way  in 
which  they  did.  The  cases  of  In  the  Goods  of  Bushell,  13  P.  D.  7,  and 
In  the  Goods  of  Huddleston,  63  L.  T.  (N.  S.)  255,  refer,  I  think,  only 
to  the  correction  of  clerical  errors;  and  the  language  of  the  Judicial 
Committee  in  Rhodes  v.  Rhodes,  7  App.  Cas.  192,  points  to  the  difficul- 
ty of  rejecting  words  where  their  rejection  alters  the  sense  of  those 
which  remain.  But  I  think  that  the  application  of  the  principle  of 
striking  out  a  word  clearly  inserted  in  mistake  may  be  safely  extended, 
if  it  be  an  extension,  to  a  case  where  the  effect  of  its  rejection  may  be 
to  render  ambiguous,  or  even  insensible,  a  clause  of  which  it  formed 
part.  If  a  person  by  fraud  obtained  the  substitution  of  his  name  for 
that  of  another  in  a  will  it  would  be  strange  if  his  name  could  not  be 


84  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

struck  out,  although  the  rest  of  the  clause  in  which  it  occurred  became 
thereby  meaningless.  It  may  be  that  in  the  present  case  the  effect  of 
striking  out  the  name  in  questton  will  be,  on  the  construction  of  the 
will,  as  it  will  then  read,  to  carry  out  the  testator's  intentions  complete- 
ly. It  is  not  for  me  to  decide  that.  But  even  if  to  strike  out  a  name 
inserted  in  error  and  leave  a  blank  have  not  the  effect  of  giving  full 
effect  to  the  testator's  wishes,  I  do  not  see  why  we  should  not,  so  far 
as  we  can,  though  we  may  not  completely,  carry  out  his  intentions.  I 
am,  therefore,  willing  to  grant  probate  of  this  will  as  prayed  with  the 
omissions  specified. 


II.  Fraud8 
WILKINSON  v.  JOUGHIN. 

(High  Court  of  Chancery,  1806.     L.  R.  2  Eq.  319.) 

William  Thompson,  who  died  in  July,  1864,  by  his  will  dated  the 
20th  of  May,  1864,  devised  and  bequeathed  all  his  real  and  personal 
estate  to  the  plaintiff  and  the  defendant  Joughin,  whom  he  also  ap- 
pointed executors,  upon  trust  "to  permit  my  wife,  Adelaide,  to  receive 
from  my  death  the  net  annual  income  thereof  during  her  life."  And 
after  her  death  the  testator  directed  his  trustees  to  sell  his  real  estate, 
and  to  convert  and  get  in  his  personal  estate,  and  to  invest  the  moneys 
to  arise  in  trust  for  the  benefit  of  his  children ;  but  if  no  child  of  his 
should  attain  the  age  of  twenty-one,  or  be  married,  then  upon  trust  to 
pay  certain  legacies ;  and  as  to  the  residue,  "In  trust  for  my  stepdaugh- 
ter, Sarah  Ward,  for  her  absolute  use.  But  in  case  she  shall  die  with- 
out leaving  issue,  upon  trust  to  pay  the  same  moneys  to  John  Wilkinson 
and  my  cousin,  Anne  Hammond,  in  equal  shares.  I  direct  that  my  wife 
shall  out  of  the  income  of  my  said  estate  maintain,  educate,  and  bring 
up  my  children  until  the  age  of  twenty-one  years  (but  my  trustee  shall 
not  be  obliged  to  see  this  direction  fulfilled),  and  that  she  shall  receive 
and  enjoy  such  income  as  her  separate  estate,  without  the  control  or 
interference  of  any  future  husband,  and  her  receipt  to  be,  notwith- 
standing coverture,  an  effectual  discharge  for  the  same." 

The  testator  left  no  issue  him  surviving.  The  bill  alleged  that  on  the 
15th  of  October,  1849,  Thomas  Ward  and  Adelaide  Ward  (then  Rown- 
tree)  were  married  at  Great  Grimsby,  and  that  the  defendant  Sarah 
Ward  was  a  child  of  that  marriage ;  and  that  on  the  20th  of  May,  1863, 
the  defendant  Adelaide  Ward  and  the  testator  went  through  the  cere- 
mony of  marriage  at  Liverpool — the  defendant  Adelaide  Ward  having 
represented  herself  to  the  testator  as,  and  he  having  believed  her  to  be, 
a  widow — the  defendant  Thomas  Ward,  her  husband,  being  then,  and 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  58. 


FKAUI>  85 

in  March,  1865,  when  the  bill  was  filed,  alive.  The  plaintiff  submitted 
to  the  judgment  of  the  court,  whether  the  defendant  Adelaide  Ward, 
or  the  defendant  Thomas  Ward,  her  husband,  in  her  right,  could  take 
any  interest  under  the  will ;  and  also  what  interest  (if  any)  the  defend- 
ant'Sarah  Ward  took  under  it;  and  prayed  that  the  trusts  might  be 
performed  by  the  court,  and  for  a  declaration  as  to  the  rights  of  all 
persons  interested  under  the  will,  and  for  an  account  and  inquiries. 
The  evidence,  in  the  view  taken  of  it  by  the  court,  sustained  the  con- 
clusion that  the  misrepresentation  by  Adelaide  Ward  was  wilful. 

SIR  JOHN  STUART,  V.  C.  In  my  opinion  the  bequest  in  favor  of 
Adelaide  Ward  is  void.  She  has  sworn  in  her  answer  that  which  has 
been  distinctly  disproved.  The  evidence  shows  that  she  imposed  in 
a  gross  manner  upon  the  testator.  Therefore,  there  must  be  a  declara- 
tion to  the  effect  that  the  bequest  to  Adelaide  Ward,  the  pretended 
wife  of  the  testator,  is  wholly  void,  and  then  there  must  be  the  usual 
decree  for  administration. 

The  right  of  the  infant,  Sarah  Ward,  seems  to  me  very  clear.  An 
attempt  has  been  made  to  show  that  inasmuch  as  the  testator  was  de- 
frauded by  the  woman  whom  he  believed  to  be  his  wife,  and  was, 
through  that  fraud,  induced  to  believe  that  her  child  was  his  step- 
daughter, the  bequest  to  her  wholly  fails.  But  in  the  case  referred  to 
of  Kennell  v.  Abbott,  4  Ves.  802,  Lord  Alvanley  took  care  to  distin- 
guish between  the  cases  of  an  innocent  and  a  fraudulent  legatee,  and 
in  my  opinion  there  is  no  warrant  for  saying,  where  the  testator  knew 
this  infant  legatee  personally,  and  intended  to  benefit  her  personally, 
that  the  language  of  the  will  is  not  a  sufficient  description.  Sarah 
Ward  therefore,  is  entitled  under  the  will,  but  I  have  some  difficulty  in 
saying  that  she  is  absolutely  entitled,  as  there  is  a  gift  over  in  case  she 
shall  die  under  twenty-one  years  of  age,  and  without  issue. 

Declare  that  the  gift  to  Sarah  Ward  is  valid,  and  the  question, 
whether  absolutely  or  not,  will  be  left  open  until  the  hearing  on  further 
consideration. 


86  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

III.  Undue  Influence 
1.  WHAT  CONSTITUTES* 


GINTER  v.  GINTER. 

(Supreme  Court  of  Kansas,  1909.     79  Kan.  721,  101  Pac.  634  22  L.  R.  A. 

[N.  S.]  1024.) 

Action  by  J.  H.  Ginter  against  Fred  Ginter  and  others.  Judgment 
for  defendants,  and  plaintiff  brings  error. 

On  August  14,  1903,  Louis  Ginter  executed  his  will  giving  one-half 
of  his  property  to  his  wife,  $100  each  to  three  married  daughters,  $50 
to  his  son  John,  and  the  remainder  of  his  estate  to  his  son  Frederick. 
Frederick  was  named  as  executor,  was  given  the  care  and  manage- 
ment of  the  estate  for  five  years,  and  was  allowed  the  same  period  in 
which  to  pay  bequests.  The  will  was  duly  witnessed  by  S.  B.  Isenhart 
and  Mae  V.  Burnett.  On  January  15,  1904,  the  testator  died  leaving 
as  his  heirs  the  beneficiaries  named  in  the  will  and  leaving  an  estate 
consisting  of  real  and  personal  property  valued  at  $3,000.  It  may  have 
been  worth  $3,750.  In  March,  1904,  the  will  was  duly  probated,  and 
soon  afterward  John  Ginter  commenced  proceedings  to  set  it  aside  on 
the  ground  of  undue  influence  and  fraud  practiced  upon  his  father  by 
Frederick  Ginter. 

On  the  trial  the  plaintiff's  evidence  tended  to  prove  that  Louis  Ginter 
was  about  70  years  old  when  he  made  his  will.  He  was  very  deaf,  so 
that  conversation  with  him  was  quite  difficult,  and  when  once  an  idea 
was  implanted  in  his  mind  he  clung  to  it  with  much  tenacity.  The  son 
John,  who  was  45  years  old,  had  not  lived  at  his  father's  house  for 
many  years,  and  when  the  daughters  had  married  they  had  moved 
away.  The  son  Fred  remained  with  his  father.  At  the  time  of  the 
trial  he  had  a  wife  and  four  children.  Some  12  or  15  years  before  his 
death,  Louis  Ginter  entered  into  a  partnership  with  Fred  to  engage  in 
farming.  At  first  John  was  taken  in  as  a  member  of  the  firm,  but  in  a 
few  days  he  had  difficulty  with  his  father,  who  then  refused  to  do  fur- 
ther business  with  him.  The  partnership  between  Fred  and  his  father 
lasted  until  the  latter's  death,  and  through  their  joint  efforts  the  sub- 
stantial part  of  the  property  disposed  of  by  the  will  was  created.  A 
homestead  of  160  acres  of  land  covered  by  a  mortgage  of  $1,100  was  so 
acquired,  where  both  families  lived;  each  partner  paying  one-half  of 
the  expenses. 

The  father  had  great  confidence  in  Fred,  much  more  than  in  any 
other  of  his  children.  His  disposition  was  to  rely  upon  persons  whom 

•  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  60. 


UNDUE    INFLUENCE  87 

he  trusted.  Generally  he  consulted  Fred,  and  as  he  aged  he  depended 
more  and  more  upon  Fred  and  yielded  more  to  his  advice  than  in  for- 
mer years.  It  might  be  said  that  for  10  years  before  his  death  Fred 
had  been  his  confidential  business  adviser.  In  1899  John  suffered  the 
loss  of  a  hand  through  an  accident.  He  was  poor,  and  had  a  wife  and 
four  children  to  support.  After  that  his  father  manifested  sympathy 
and  affection  for  him  by  giving  him  presents  of  small  value,  and  both 
his  father  and  brother  indorsed  notes  for  him  to  enable  him  to  borrow 
money.  In  January,  1903,  bad  feeling  existed  between  John  and  two 
of  his  brothers-in-law.  Previous  to  that  time  there  had  been  bicker- 
ings between  John  and  Fred.  In  April,  1903,  John  noticed  a  coolness 
toward  him  on  the  part  of  his  father.  His  father  seemed  to  avoid  him 
and  refused. to  sign  a  note  for  him.  The  father's  birthday  occurred  on 
April  5th,  and  a  dinner  was  given  at  John's  house.  The  father  came, 
but  went  away  soon  after  dinner.  Another  dinner  was  given  on  August 
17th,  the  mother's  birthday,  but  the  father  did  not  come.  When  the 
mother  desired  to  visit  John's  house,  the  father  took  her  there,  left  her, 
and  went  on  to  one  of  his  daughter's. 

Probably  in  March,  1903,  John  and  Fred  had  a  conversation  re- 
lating to  the  disappearance  of  some  undivided  money  belonging  to  Fred 
and  his  father.  John  said:  "If  father  has  more  money  than  he  has 
use  for,  if  at  his  death  the  property  is  equally  divided,  20  cents  of  ev- 
ery dollar  you  give  away,  you  give  away  20  cents  of  my  money."  Fred 
became  incensed  and  said:  "You  claim  that  20  cents  out  of  every 
dollar  is  yours,  do  you?"  John  replied:  "I  said  that  every  dollar 
father  and  mother  do  not  use  20  cents  of  it  is  mine  if  it  is  divided 
equally."  Fred  told  his  father.  Precisely  what  Fred  stated  cannot  be 
determined,  but  it  may  be  assumed  the  substance  was  that  John  had 
said  every  dollar  ought  to  be  accounted  for  because  20  cents  of  it  be- 
longed to  him.  One  of  the  sisters  heard  the  conversation  and  corrobo- 
rates John's  version  of  it.  A  little  later  in  March  the  father  spoke  of 
the  matter  to  this  daughter.  He  was  angry  at  John,  and  said  that  he 
would  show  John  he  would  give  20  cents  of  it  whether  John  wanted 
him  to  or  not.  The  daughter  endeavored  to  explain  to  her  father  what 
had  occurred,  and  to  make  him  understand  the  truth  of  it,  and  thought 
she  did  so.  He  said:  "If  that's  the  way,  it  isn't  quite  so  bad;  but  it 
"isn't  the  way  Fred  tells  it" 

In  July,  1903,  the  father,  who  was  much  opposed  to  the  use  of  in- 
toxicating liquors,  went  to  the  home  of  Mr.  Rupple,  one  of  his  sons-in- 
law,  to  inquire  about  John's  drinking.  Mr.  Rupple  was  away,  and  he 
talked  with  Mrs.  Rupple.  He  said  he  had  it  from  pretty  good  authority 
that  John  was  drinking  heavy,  that  Fred  had  told  him,  and  that  the 
day  Fred  and  John  and  Mr.  Rupple  had  all  brought  hogs  up  John  had 
been  so  drunk  he  did  not  know  what  he  was  doing  and  had  a  racket 
with  the  feedyard  man.  What  Mrs.  Rupple  said,  or  what  further  in- 
vestigation her  father  made,  is  not  disclosed.  In  October,  after  the 
will  was  made,  the  father  talked  with  another  daughter,  Mrs.  Hill, 


88  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

about  John's  drinking.  He  said  he  had  it  from  good  authority  John 
was  drinking  like  sin,  and  further  said:  "If  I  outlive  mother,  John 
won't  get  anything ;  but,  if  mother  outlives  me,  he  will  get  what  the  law 
allows  him."  John  testified  that  he  had  never  been  drunk  but  once, 
when  he  was  given  liquor  to  deaden  the  pain  after  the  loss  of  his  hand, 
and  that  he  was  not  a  drinking  man.  After  the  father's  death  Fred  ac- 
cused John  of  being  drunk  on  the  occasion  at  the  feedyard,  and  an  al- 
tercation ensued.  It  appears  that  Louis  Ginter  died  as  the  result  of  an 
injury  received  on  November  20,  1903.  John  and  two  of  his  sisters 
testified  they  did  not  know  of  a  will  until  after  their  father's  death. 
The  trial  court  sustained  a  demurrer  to  the  foregoing  evidence,  and  the 
only  question  is  whether  it  was  sufficient  to  take  the  case  to  the  jury  on 
the  charge  of  undue  influence  and  fraud. 

BURCH,  J.*  (after  stating  the  facts  as  above).  To  vitiate  a  will  there 
must  be  more  than  influence.  It  must  be  undue  influence.  To  be  class- 
ed as  undue,  influence  must  place  the  testator  in  the  attitude  of  saying, 
"It  is  not  my  will,  but  I  must  do  it."  He  must  act  under  such  coercion, 
compulsion,  or  constraint  that  his  own  free  agency  is  destroyed.  The 
will,  or  the  provision  assailed,  does  not  truly  proceed  from  him.  He 
becomes  the  tutored  instrument  of  a  dominating  mind  which  dictates  to 
him  what  he  shall  do,  compels  him  to  adopt  its  will  instead  of  exercis- 
ing his  own,  and  by  overcoming  his  power  of  resistance  impels  him  to 
do  what  he  would  not  have  done  had  he  been  free  from  its  control.  A 
testator's  favor  expressed  in  a  will  may  be  won  by  devoted  attachment, 
self-sacrificing  kindness,  and  the  beneficent  ministrations  of  friend- 
ship and  love.  These  influences  are  not  undue.  We  expect  partiality 
to  attend  them.  They  bring  preferment  as  their  natural  reward,  and 
they  do  not  become  unrighteous,  although  they  establish  a  general  as- 
cendancy over  the  testator,  leading  him  to  find  comfort  and  pleasure  in 
gratifying  the  wishes  and  desires  of  the  person  exercising  them.  Oth- 
er less  worthy  influences  may  make  equally  strong  appeals  and  may  re- 
sult in  the  same  general  dominion  and  still  be  sufferable  in  contempla- 
tion of  the  law.  Influences  to  induce  testamentary  disposition  may  be 
specific  and  direct  without  becoming  undue.  It  is  not  improper  to  ad- 
vise, to  persuade,  to  solicit,  to  importune,  to  entreat,  and  to  implore. 
Hopes  and  fears  and  even  prejudices  may  be  moved.  Appeals  may  be 
made  to  vanity  and  to  pride;  to  the  sense  of  justice  and  to  the  obliga- 
tions of  duty;  to  ties  of  friendship,  of  affection,  and  of  kindred;  to 
the  sentiment  of  gratitude;  to  pity  for  distress  and  destitution.  It  is 
not  enough  that  the  testator's  convictions  be  brought  into  harmony  with 
that  of  another  by  such  means.  His  views  may  be  radically  changed, 
but  so  long  as  he  is  not  overborne  and  rendered  incapable  of  acting 
finally  upon  his  own  motives,  so  long  as  he  remains  a  free  agent,  his 
choice  of  a  course  is  his  own  choice,  and  the  will  is  his  will  and  not 

that  of  another. 

• 

*  Part  only  of  the  opinion  is  given. 


UNDUE    INFLUENCE  89 

"If  an  act  has  been  extorted  by  force  or  obtained  by  fraud,  or  in- 
duced by  artful  misrepresentations,  or  if  exhausted  patience  has  yielded 
to  great  importunity  for  the  sake  of  peace,  or  weakness  has  been  ca- 
joled by  excessive  and  artful  flattery,  or  fear  has  sought  security  in 
concessions  to  threats  or  to  malevolent  indications  of  the  power  to  mis- 
chief, or  if  over  a  feeble  mind  which,  if  left  to  itself,  might  be  compe- 
tent for  ordinary  affairs,  a  general  dominion  has  been  established  so 
controlling  as  to  prevent  its  free  agency,  and  the  act  has  been  subject 
to  this  influence,  in  none  of  these  cases  is  a  paper  purporting  to  be  a 
will  valid,  nor  is  any  other  act  valid,  for  in  none  of  them  does  the  act 
proceed  from  the  volition  of  the  agent.  Some  or  all  of  these  cases 
make  up  what  is  usually  comprehended  under  the  term  'undue  influ- 
ence/ so  familiarly  in  use  with  us.  It  is  not  influence  merely,  but  undue 
influence,  that  is  always  alleged — something  excessive  and  unlawful. 
It  is  not  the  influence  of  friendship  or  affection  that  can  be  complained 
of,  nor  the  influence  of  argument  or  entreaty,  nor  the  impression  made 
by  kindness  or  prudence,  nor  even  the  effect  wrought  by  servile  com- 
pliance or  mean  endurance  of  wrong.  It  must  be  something  which  de- 
stroys free  agency.  Motives  of  almost  every  conceivable  kind  may  be 
offered,  and  if  the  mind  of  the  agent,  free  to  reject  or  adopt  the  mo- 
tives, yields  its  assent,  the  act  is  the  act  of  the  agent."  Means  v.  Means, 
5  Strob.  (S.  C.)  167,  192. 

"In  order  to  cause  a  will  or  deed  to  be  set  aside  on  the  ground  of 
fraud  and  undue  influence,  it  must  be  established  to  the  satisfaction 
of  the  court  that  the  party  making  it  had  no  free  will,  but  stood  in  vin- 
culis."  Conley  v.  Nailor,  118  U.  S.  127,  6  Sup.  Ct.  1001,  30  L.  Ed.  112. 
"Upon  contest  of  will  for  undue  influence,  the  question  is  'whether  the 
will  is  the  will  of  the  testator,  or  that  of  another.'  It  is  not  influence 
that  vitiates,  but  undue  influence ;  and  it  must  go  to  the  extent  of  de- 
priving the  testator  of  his  free  agency,  and  amount  to  moral  coercion 
which  he  is  unable  to  resist."  Peery  v.  Peery,  94  Tenn.  328,  329,  29 
S.  W.  1.  "The  influence  which  the  law  denominates  undue,  and  which 
vitiates  a  will  executed  under  it,  must  amount  to  moral  or  physical 
coercion,  destroying  free  agency  and  constraining  its  subject  to  do  that 
which  but  for  it  he  would  not  do."  Westcott  v.  Sheppard,  51  N.  J. 
Eq.  315,  25  Atl.  254,  30  Atl.  428.  "Undue  influence,  such  as  will  in- 
validate a  will,  must  be  something  which  destroys  the  free  agency  of 
the  testator  at  the  time  when  the  instrument  is  made,  and  which,  in  ef- 
fect, substitutes  the  will  of  another  for  that  of  the  testator.  It  may  be 
exercised  through  threats,  fraud,  importunity,  or  by  the  silent,  re- 
sistless power  which  the  strong  often  exercise  over  the  weak  and  in- 
firm ;  but,  however  exercised,  it  must,  in  order  to  avoid  a  will,  destroy 
the  free  agency  of  the  testator  at  the  time  it  was  made,  so  that  the  in- 
strument in  fact  expresses  the  mind  and  intent  of  some  one  else,  and 
not  his  own."  Schmidt  v.  Schmidt,  47  Minn.  451,  457,  50  N.  W.  598, 
600.  *  *  * 


90  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

Applying  the  foregoing  rules  to  the  facts  of  the  present  case,  it  is 
clear  the  demurrer  to  the  evidence  was  properly  sustained.  There  is 
no  evidence  of  the  fact,  and  nothing  from  which  a  jury  might  legiti- 
mately infer,  that  Frederick  Ginter  concerned  himself  in  the  slightest 
degree  in  the  matter  of  the  disposition  of  his  father's  estate  by 
*  *  *  Affirmed. 


2.  CONFIDENTIAL  RELATIONS  AS  AFFECTING  UNDUE  INFLUENCE  B 
PARFITT  v.  LAWLESS. 

(Courts  of  Probate  and  Divorce,  1872.     L.  R.  2  P.  &  D.  462.) 

The  plaintiff,  Rev.  Charles  Parfitt,  D.  D.,  propounded  the  will  of 
Jane  Conolly,  of  Cottles,  near  Bath,  in  the  county  of  Wilts,  widow, 
bearing  date  the  16th  of  July,  1862.  The  defendant,  Philip  Lawless, 
pleaded  originally  that  the  will  was  not  executed  in  accordance  with 
the  requirements  of  the  statute  1  Viet.  c.  26,  that  the  deceased  was  not 
of  sound  mind  at  the  time  of  execution,  and  that,  as  regards  the  res- 
idue, the  will  was  obtained  by  undue  influence  of  the  plaintiff.  Sub- 
sequently the  two  first  pleas  were  withdrawn.  Mrs.  Conolly's  hus- 
band, who  died  in  1850,  was  possessed  of  a  considerable  estate  called 
the  Cottles  estate,  valued  at  £63,000.,  and  other  property.  He  left  a 
life  interest  in  it  to  his  widow,  and  on  her  decease  he  bequeathed  it 
to  his  son  (by  a  previous  wife),  Charles  John  Thomas  Conolly,  abso- 
lutely; but  in  case  his  son  died  in  the  lifetime  of  the  widow  without 
issue,  then  the  estate  was  to  become  hers  absolutely  subject  to  an 
annuity  for  life  of  £2,500.  to  the  son's  widow.  Charles  John  Thomas 
Conolly  died  a  few  days  before  Jane  Conolly,  leaving  a  widow  but 
no  issue.  The  property,  exclusive  of  the  interest  under  her  husband's 
will,  of  which  the  deceased  died  possessed  was  of  the  value  of  £7,000. 

The  will  propounded  was  divided  into  two  p-r'js;  by  the  first  she 
disposed  of  the  property  she  then  possessed,  and  gave  the  residue 
thereof  to  the  plaintiff;  and  in  the  second  she  referred  to  her  interest 
under  her  husband's  will,  and  in  case  she  should  come  into  possession 
of  the  Cottles  estate  she  charged  it  with  annuities  to  the  amount  of 
£740,  and  subject  to  such  charges  bequeathed  it  to  the  plaintiff.  The 
plaintiff  is  a  priest  of  the  Roman  Catholic  Church,  and  from  the 
year  1848  until  her  death  resided  with  the  deceased  and  her  husband 
as  domestic  chaplain;  for  a  greater  portion  of  the  time  he  also  acted 
as  her  confessor. 

The  question  at  issue  was  tried  before  Lord  Penzance  and  a  special 
jury  on  the  20th  and  21st  December,  1871.  The  defendant,  upon 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  62. 


UNDUE    INFLUENCE  91 

whom  the  burthen  of  proof  lay,  produced  several  witnesses,  but  the 
Court  held  he  gave  no  evidence  to  go  to  the  jury.  With  the  leave  of 
the  Court  his  counsel  then  called  the  plaintiff  and  examined  and  ulti- 
mately cross-examined  him  as  a  hostile  witness,  but  the  Court  still 
held  that  no  sufficient  case  of  undue  influence  to  go  to  a  jury  had  been 
offered,  and  directed  the  jury  to  find  a  verdict  for  the  plaintiff,  which 
they  did,  and  probate  was  granted  of  the  will  on  formal  proof  of  ex- 
ecution. On  the  24th  of  January,  1872,  before  Lord  Penzance,  and 
Mellor  and  Brett,  JJ.,  an  application  for  a  new  trial  was  made  on  the 
ground  of  misdirection,  and  a  rule  nisi  was  ordered  to  issue,  which 
came  on  for  argument  before  Lord  Penzance,  Pigott,  B.,  and  Brett,  J. 

July  25.  LORD  PENZANCE.6  This  rule  was  granted  in  order  to  con- 
sider a  suggestion  strongly  pressed  that  the  rules  adopted  in  the  Courts 
of  equity  in  relation  to  gifts  inter  vivos  ought  to  be  applied  to  the 
making  of  wills.  In  equity  persons  standing  in  certain  relations  to 
one  another — such  as  parent  and  child,  man  and  wife,  doctor  and 
patient,  attorney  and  client,  confessor  and  penitent,  guardian  and 
ward — are  subject  to  certain  presumptions  when  transactions  between 
them  are  brought  in  question ;  and  if  a  gift  or  contract  made  in  favor 
of  him  who  holds  the  position  of  influence  is  impeached  by  him  who 
is  subject  to  that  influence,  the  Courts  of  equity  cast  upon  the  former 
the  burthen  of  proving  that  the  transaction  was  fairly  conducted  as 
if  between  strangers ;  that  the  weaker  was  not  unduly  impressed  by 
the  natural  influence  of  the  stronger,  or  the  inexperienced  overreached 
by  him  of  more  mature  intelligence. 

Applying  this  view  of  the  subject  to  the  making  of  a  will,  it  was 
contended  in  this  case  that  it  was  enough  to  show  that  a  legatee  fell 
within  the  class  enumerated,  and  that,  having  done  so,  the  onus  was 
cast  upon  him  of  proving  that  his  legacy  was  not  obtained  by  undue 
influence.  It  would  be  an  answer  to  this  argument  to  say  that  this 
has  never  been,  and  is  not  the  law  in  this  or  any  other  court  regarding 
wills;  and  that,  if  this  Court  should  presume  to  make  a  new  law  on 
the  subject,  it  would  establish  one  rule  in  regard  to  personalty,  while 
another  would  remain  the  existing  rule  in  regard  to  realty.  "One 
point,  however,  is  beyond  dispute,"  said  Lord  Cranworth  in  Boyse  v. 
Rossborough,  6  H.  L.  C.  at  p.  49;  "and  that  is,  that  where  once  it 
has  been  proved  that  a  will  has  been  executed  with  due  solemnities 
by  a  person  of  competent  understanding,  and  apparently  a  free  agent, 
the  burthen  of  proving  that  it  was  executed  under  undue  influence  is 
on  the  party  who  alleges  it.  Undue  influence  cannot  be  presumed." 
But  in  truth  the  cases  in  equity  apply  to  a  wholly  different  state  of 
things.  In  the  first  place,  in  those  cases  of  gifts  or  contracts  inter 
vivos  there  is  a  transaction  in  which  the  person  benefited  at  least 
takes  part,  whether  he  unduly  urges  his  influence  or  not ;  and  in  call- 
ing upon  him  to  explain  the  part  he  took,  and  the  circumstances  that 

«  Part  only  of  the  opinion  Is  given. 


92  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

brought  about  the  gift  or  obligation,  the  Court  is  plainly  requiring  of 
him  an  explanation  within  his  knowledge.  But  in  the  case  of  a  legacy 
under  *  will,  the  legatee  may  have,  and  in  point  of  fact  generally  has, 
no  part  in  or  even  knowledge  of  the  act;  and  to  cast  upon  him,  on  the 
bare  proof  of  the  legacy  and  his  relation  to  the  testator,  the  burthen 
of  showing  how  the  thing  came  about,  and  under  what  influence  or 
with  what  motives  the  legacy  was  made,  or  what  advice  the  testator 
had,  professional  or  otherwise,  would  be  to  cast  a  duty  on  him  which 
in  many  if  not  most  cases,  he  could  not  possibly  discharge. 

A  more  material  distinction  is  this:  The  influence  which  is  undue 
in  the  cases  of  gifts  inter  vivos  is  very  different  from  that  which  is 
required  to  set  aside  a  will.  In  the  case  cf  gifts  or  other  transactions 
inter  vivos  it  is  considered  by  the  Courts  of  equity  that  the  natural  in- 
fluence which  such  relations  as  those  in  question  involve,  exerted  by 
those  who  possess  it  to  obtain  a  benefit  for  themselves,  is  an  undue  in- 
fluence. Gifts  or  contracts  brought  about  by  it  are,  therefore,  set 
aside  unless  the  party  benefited  by  it  can  show  affirmatively  that  the 
other  party  to  the  transaction  was  placed  "in  such  a  position  as  would 
enable  him  to  form  an  absolutely  free  and  unfettered  judgment." 
Archer  v.  Hudson,  7  Beav.  551. 

The  law  regarding  wills  is  very  different  from  this.  The  natural 
influence  of  the  parent  or  guardian  over  the  child,  or  the  husband  over 
the  wife,  or  the  attorney  over  the  client,  may  lawfully  be  exerted  to 
obtain  a  will  or  legacy,  so  long  as  the  testator  thoroughly  understands 
what  he  is  doing,  and  is  a  free  agent.  There  is  nothing  illegal  in  the 
parent  or  husband  pressing  his  claims  on  a  child  or  wife,  and  obtaining 
a  recognition  of  those  claims  in  a  legacy,  provided  that  that  persuasion 
stop  short  of  coercion,  and  that  the  volition  of  the  testator,  though 
biased  and  impressed  by  the  relation  in  which  he  stands  to  the  legatee, 
is  not  overborne  and  subjected  to  the  domination  of  another. 

The  influence  which  will  set  aside  a  will,  says  Mr.  Justice  Wil- 
liams, "must  amount  to  force  and  coercion  destroying  free  agency ; 
it  must  not  be  the  influence  of  affection  or  attachment;  it  must  not 
be  the  mere  desire  of  gratifying  the  wishes  of  another,  for  that  would 
be  a  very  strong  ground  in  support  of  a  testamentary  act;  further, 
there  must  be  proof  that  the  act  was  obtained  by  this  coercion ;  by  im- 
portunity which  could  not  be  resisted;  that  it  was  done  merely  for 
the  sake  of  peace,  so  that  the  motive  was  tantamount  to  force  and 
fear."  Williams'  Executors,  pt  1,  bk.  2,  ch.  1,  sec.  2.  This  differ- 
ence, then,  between  the  influence  which  is  held  to  be  undue  in  the  case, 
of  transactions  inter  vivos,  and  that  which  is  called  undue  in  relation 
to  a  will  or  legacy  is  all-important  when  a  question  arises  of  making 
presumptions  or  adjusting  the  burthen  of  proof.  For  it  may  be  rea- 
sonable enough  to  presume  that  a  person  who  had  obtained  a  gift  or 
contract  to  his  own  advantage  and  the  detriment  of  another  by  way  of 
personal  advice  or  persuasion  has  availed  himself  of  the  natural  in- 
fluence which  his  position  gave  him.  And  in  casting  upon  him'  the 


UNDUE   INFLUENCE  '93 

burthen  of  exculpation,  the  law  is  only  assuming  that  he  has  done  so. 
But  it  is  a  very  different  thing  to  presume,  without  a  particle  of  proof, 
that  a  person  so  situated  has  abused  his  position  by  the  exercise  of 
dominion  or  the  assertion  of  adverse  control. 

For  these  reasons  it  seems  to  me  that  it  would  be  improper  and  un- 
just to  throw  upon  a  man  in  the  position  of  the  plaintiff,  without  any 
proof  that  he  had  any  hand  whatever  in  the  making  of  this  will,  the 
onus  of  proving  negatively  that  he  did  not  coerce  the  testatrix  into 
devising  the  residue  of  her  land  to  him.  I  say  coerce,  for  this  is  the 
only  matter  involved  in  a  plea  of  undue  influence.  Lord  Cranworth 
appears  in  the  case  above  cited  to  have  regarded  fraud  as  a  species  of 
undue  influence.  It  is  a  mere  question  of  terms ;  but  by  the  rules  of 
pleading  established  in  this  court  since  December,  1865,  fraud,  which 
includes  misrepresentation,  is  the  subject  of  a  separate  plea,  and  undue 
influence  as  a  term  used  in  a  plea  in  this  court  raises  the  question  of 
coercion,  and  that  only.  *  *  *  Rule  discharged. 


3.    EVIDENCE7 


SHAILER  v.  BUMSTEAD. 
(Supreme  Judicial  Court  of  Massachusetts,  1868.     99  Mass.  112.) 

Appeals  by  Julius  S.  Shailer,  executor,  the  Massachusetts  Baptist 
State  Convention,  and  certain  heirs  at  law  of  Miss  Sarah  Bumstead, 
from  a  decree  of  the  judge  of  probate,  allowing  a  will,  dated  April 
7,  1853,  and  a  codicil  thereto,  dated  September  30,  1857,  as  the  last 
will  of  Miss  Bumstead,  who  died  on  March  21,  1865,  at  the  age  of 
ninety-one  years.  *  *  * 

The  contestants  relied  upon  evidence  of  declarations  of  Miss  Bum- 
stead,  made  at  the  time  of  executing  the  will  of  1851,  and  also  both 
before  and  after  that  time,  to  the  effect  that  she  intended  to  devote 
the  front  lot  as  a  sacred  offering  to  the  Lord,  through  the  Baptist 
State  Convention,  and  that  she  intended  the  back  lot  to  be  kept  for 
the  use  of  her  needy  relatives ;  from  which  they  contended  that  it 
appeared  that  she  had  had  a  long  cherished,  settled  and  unvarying 
purpose  which  was  inconsistent  with  the  provisions  of  the  will  of 
1853 ;  and  they  relied  on  the  character  and  effect  of  these  provisions 
to  show  that  the  will  of  1853  could  not  have  been  the  product  of  a  free 
exercise  of  her  mind.  *  *  * 

The  attesting  witnesses  were  a  brother,  sister  and  brother-in-law  of 
Hayden,  who  were  not  informed  of  the  contents  of  the  will.  No  per- 
sons were  present  except  the  testatrix,  the  attesting  witnesses,  and 

T  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  63. 


94  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

Hayden  and  Shatter ;  and  it  did  not  appear  that  the  testatrix  ever  saw 
the  will  afterwards. 

As  further  evidence  that  the  will  so  made  was  contrary  to  the  real 
intentions  of  the  testatrix,  or  that  she  was  ignorant  of  its  contents, 
and  that  it  was  procured  by  fraud  and  undue  influence  of  Hayden  and 
Shatter,  the  contestants  offered  to  prove  declarations  of  the  testatrix, 
and  of  Hayden  and  Shatter,  subsequent  to  the  date  of  the  will ;  and 
conduct  of  Hayden  and  Shatter  in  relation  to  the  property  and  busi- 
ness of  Miss  Bumstead.  The  evidence  of  such  subsequent  declara- 
tions and  conduct  was  excluded,  so  far  as  offered  for  that  purpose; 
but  the  contestants  were  allowed  to  put  in  any  evidence  tending  to 
show  that  relatives  and  friends  were  prevented  or  deterred  in  any 
way  from  free  access  to  and  communication  with  the  testatrix,  or  that 
she  was  in  any  way  prevented  from  revoking  or  making  any  change  in 
her  will,  if  she  had  desired  to  do  so.  *  *  * 

COLT,  J.8  Several  questions  arising  upon  the  admission  and  rejec- 
tion of  evidence  at  the  trial  are  presented  by  this  report.  One  of  the 
most  important,  whether  we  regard  its  practical  consequences,  or  the 
apparent,  and  to  some  extent  real,  conflict  of  authority,  relates  to  the 
admissibility  of  the  declarations  of  the  testatrix  made  after  the  execu- 
tion of  the  will.  Such  declarations  were  offered  to  sustain  the  allega- 
tions of  fraud  and  undue  influence,  and  ignorance  of  its  contents,  and 
were  excluded. 

That  the  instrument  which  contains  the  testamentary  disposition  of 
a  competent  person,  executed  freely  and  with  all  requisite  legal  for- 
malities, must  stand  as  the  only  evidence  of  such  disposal,  is  generally 
conceded.  Such  a  will  is  not  to  be  controlled  in  its  plain  meaning  by 
evidence  of  verbal  statements  inconsistent  with  it;  nor  impaired  in  its 
validity  and  effect  by  afterthoughts  or  changes  in  the  wishes  or  pur- 
poses of  the  maker,  however  distinctly  asserted.  It  is  to  be  revoked 
only  by  some  formal  written  instrument,  some  intentional  act  of  de- 
struction or  cancellation,  or  such  change  of  circumstances  as  amounts 
in  law  to  a  revocation. 

Any  invasion  of  this  rule  opens  the  way  to  fraud  and  perjury;  pro- 
motes controversy;  destroys  to  a  greater  or  less  degree  that  security 
which  should  be  afforded  to  the  exercise  of  the  power  to  control  the 
succession  to  one's  property  after  death.  But  the  rule  assumes  that 
the  will  sought  to  be  affected  has  once  had  a  valid  existence.  It  is 
always  liable  to  be  impeached  by  any  competent  evidence  that  it  was 
never  executed  with  the  required  formality,  was  not  the  act  of  one 
possessed  of  testamentary  capacity,  or  was  obtained  by  such  fraud  and 
undue  influence  as  to  subvert  the  real  intentions  and  will  of  the  maker. 
The  declarations  of  the  testator  accompanying  the  act  must  always  be 
resorted  to  as  the  most  satisfactory  evidence  to  sustain  or  defend  the 
will  whenever  this  issue  is  presented.  So  it  is  uniformly  held  that  the 

»  Parts  only  of  the  statement  of  facts  and  of  the  opinion  are  given. 


UNDUE  INFLUENCE  95 

previous  declarations  of  the  testator,  offered  to  prove  the  mental  facts 
involved,  are  competent.  Intention,  purpose,  mental  peculiarity  and 
condition,  are  mainly  ascertainable  through  the  medium  afforded  by  the 
power  of  language.  Statements  and  declarations,  when  the  state  of 
the  mind  is  the  fact  to  be  shown,  are  therefore  received  as  mental  acts 
or  conduct.  The  truth  or  falsity  of  the  statement  is  of  no  consequence. 
As  a  narration,  it  is  not  received  as  evidence  of  the  fact  stated.  It  is 
only  to  be  used  as  showing  what  manner  of  man  he  is  who  makes  it. 
If  therefore  the  statement  or  declaration  offered  has  a  tendency  to 
prove  a  condition  not  in  its  nature  temporary  and  transient,  then,  by 
the  aid  of  the  recognized  rule  that  what  is  once  proved  to  exist  must 
be  presumed  to  continue  till  the  contrary  be  shown,  the  declaration, 
though  prior  in  time  to  the  act  the  validity  of  which  is  questioned,  is 
admissible.  Its  weight  will  depend  upon  its  significance  and  proximity. 
It  may  be  so  remote  in  point  of  time,  or  so  altered  in  its  import  by  sub- 
sequent changes  in  the  circumstances  of  the  maker,  as  to  be  wholly  im- 
material, and  wisely  to  be  rejected  by  the  judge. 

Upon  the  question  of  capacity  to  make  a  will,  evidence  of  this  de- 
scription is  constantly  received;  and  when  the  issue  is  one  of  fraud 
and  undue  influence  it  is  equally  material.  The  requisite  mental  qualifi- 
cation to  make  a  will  might  exist,  and  be  entirely  consistent  with  such 
a  degree  of  weakness,  or  such  peculiarity,  as  would  make  the  party 
the  easy  victim  of  fraud  and  improper  influence. 

The  evidence  is  here  offered  only  to  establish  the  allegations  of  ig- 
norance of  the  will,  and  of  fraud  and  undue  influence.  The  verdict  of 
the  jury  at  a  former  trial  having  established,  beyond  controversy  now, 
that  the  will  was  made  by  one  in  possession  of  the  requisite  testamen- 
tary capacity,  its  admissibility  is  to  be  considered  only  upon  the  re- 
maining issue. 

To  establish  the  charge  of  fraud  and  undue  influence,  two  points 
must  be  sustained:  first,  the  fact  of  the  deception  practiced,  or  the 
influence  exercised;  and,  next,  that  this  fraud  and  influence  were  ef- 
fectual in  producing  the  alleged  result,  misleading  or  overcoming  the 
party  in  this  particular  act.  The  evidence  under  the  first  branch  em- 
braces all  those  exterior  acts  and  declarations  of  others  used  and  con- 
trived to  defraud  or  control  the  testator;  and  under  the  last  includes 
all  that  may  tend  to  show  that  the  testator  was  of  that  peculiar  men- 
tal structure,  was  possessed  of  those  intrinsic  or  accidental  qualities, 
was  subject  to  such  passion  or  prejudice,  of  such  perverse  or  feeble 
will,  or  so  mentally  infirm  in  any  respect,  as  to  render  it  probable  that 
the  efforts  used  were  successful  in  producing  in  the  will  offered  the 
combined  result.  The  purpose  of  the  evidence  in  this  direction  is  to 
establish  that  liability  of  the  testator  to  be  easily  affected  by  fraud  or 
undue  influence,  which  constitutes  the  necessary  counterpart  and  com- 
plement of  the  other  facts  to  be  proved.  Without  such  proof,  the  is- 
sue-can seldom,  if  ever,  be  maintained.  *  *  * 

All  this  evidence,  under  whatever  view  it  is  admitted,  is  competent 


96  MISTAKE,    FRAUD,    AND    UNDUE    INFLUENCE 

only  and  always  to  establish  the  influence  and  effect  of  the  external 
acts  upon  the  testator  himself;  never  to  prove  the  actual  fact  of  fraud 
or  improper  influence  in  another. 

Coming  now  to  the  application  of  these  rules  to  the  case  here  pre- 
sented, we  cannot  avoid  the  conclusion  that  the  report  shows  that  evi- 
dence of  the  subsequent  declarations  of  the  testatrix,  to  the  effect  that 
the  will  so  made  was  contrary  to  her  real  intentions,  or  that  she  was 
ignorant  of  its  contents,  should  have  been  admitted.  The  character 
and  habits  of  the  testatrix  in  her  better  days,  the  whole  of  her  later 
life,  with  her  expressed  purposes  and  wishes  up  to  the  time  of  the  will, 
were  exhibited  in  evidence.  With  a  considerable  degree  of  physical 
weakness,  that  loss  of  vigor  and  activity  in  the  mind,  which  indicates  in 
persons  of  her  habits  and  years  the  increasing  infirmities  and  decay  of 
old  age,  was  shown  to  exist  at  and  before  the  date  of  the  will,  for  the 
purpose  of  increasing  the  probability  that  she  was  the  victim  of  im- 
proper designs  of  others. 

The  precise  statements  are  not  reported,  nor  does  it  appear  at  what 
precise  time  they  were  made,  but  they  were  offered  to  show  either  ig- 
norance of  the  contents  of  the  will,  or  that  they  were  contrary  to  her 
real  intentions,  and  that  the  will  was  improperly  obtained  by  the  fraud 
and  undue  influence  of  the  executors  named. 

As  we  have  already  seen,  this  evidence  was  not  competent  as  a  dec- 
laration or  narrative  to  show  the  fact  of  fraud  or  undue  influence  at  a 
previous  period.  But  it  was  admissible  not  only  to  show  retention  or 
loss  of  memory,  tenacity  or  vacillation  of  purpose  existing  at  the  date 
of  the  will,  but  also  in  proof  of  long  cherished  purposes,  settled  con- 
victions, deeply  rooted  feelings,  opinions,  affections  or  prejudices,  or 
other  intrinsic  or  enduring  peculiarities  of  mind,  inconsistent  with  the 
dispositions  made  in  the  instrument  attempted  to  be  set  up  as  the  for- 
mal and  deliberate  expression  of  the  testatrix's  will;  as  well  as  to  re- 
but any  inference  arising  from  the  non-revocation  of  the  instrument. 
They  were  not  rejected  as  too  remote  in  point  of  time,  or  as  having  no 
tendency  in  their  character  to  sustain  the  fact  claimed  to  exist. 

In  connection  with  the  evidence  thus  offered  and  rejected,  the  con- 
testants offered  also  the  declarations  and  conduct  of  Hayden  and 
Shailer,  named  executors,  subsequent  to  the  date  of  the  will.  And  this 
brings  us  to  another  important  question  in  the  case.  The  evidence,  for 
the  purpose  of  which  it  was  offered,  was,  we  think,  properly  excluded. 
It  was  not  proposed  thereby  to  contradict  their  testimony.  The  ad- 
missions of  a  party  to  the  record  against  his  interest  are,  as  a  general 
rule,  competent  against  him;  and  this  rule  applies  to  all  cases  where 
there  is  an  interest  in  the  suit,  although  other  joint  parties  in  interest 
may  be  injuriously  affected.  But  it  does  not  apply  to  cases  where  there 
are  other  parties  to  be  affected  who  have  not  a  joint  interest,  or  do  not 
stand  in  some  relation  of  privity  to  the  party  whose  admission  is  relied 
upon.  A  mere  community  of  interest  is  not  sufficient.  Devisees  or 


UNDUE   INFLUENCE  97 

legatees  have  not  that  joint  interest  in  the  will  which  will  make  the 
admissions  of  one,  though  he  be  a  party  appellant  or  appellee  from  the 
decree  of  the  probate  court  allowing  the  will,  admissible  against  the 
other  legatees.  In  modern  practice,  at  law  even,  the  admissions  of  a 
party  to  the  record  who  has  no  interest  in  the  matter  will  not  be  per- 
mitted to  be  given  in  evidence  to  the  prejudice  of  the  real  party  in 
interest. 

In  this  case,  it  does  not  appear  at  what  time  after  the  date  of  the 
will  these  declarations  were  made,  whether  before  or  after  the  death 
of  the  testatrix,  or  before  or  after  the  offer  of  the  will  for  probate; 
and  perhaps  it  is  not  material.  They  stand  upon  the  same  ground 
with  statements  made  at  any  time  since  the  date  of  the  will,  by  any 
other  devisee  or  legatee  named  in  the  will,  or  heir  at  law  or  legatee 
under  the  former  will  of  1851,  whose  interests  are  affected  and  who 
is  a  party  to  this  record.  Before  the  death  of  the  testatrix,  the  interest 
of  all  these  parties  in  a  will,  liable  at  any  time  to  be  revoked,  was  not 
such  a  direct  interest  as  should  render  their  admissions  competent 
against  other  parties.  The  separate  admissions  of  each,  made  after 
the  act,  that  the  will  was  procured  by  their  joint  acts  of  fraud  or  un- 
due influence,  cannot  be  permitted  to  prejudice  the  other.  Such  state- 
ments are  only  admissible  when  they  are  made  during  the  prosecution 
of  the  joint  enterprise.  Admitting  for  the  present  that  any  interest 
in  a  will  obtained  by  undue  influence  cannot  be  held  by  third  parties, 
however  innocent  of  the  fraud,  and  that  the  gift  must  be  taken  tainted 
with  the  fraud  of  the  person  procuring  it,  still  it  by  no  means  follows 
that  the  interest  of  the  other  innocent  legatees  should  be  liable  to  be 
divested  by  the  subsequent  statements  of  the  parties  procuring  the 
will.  Such  a  rule  would  violate  all  sense  of  right,  and  is  not  sustained 
by  the  decisions.  *  *  *  New  trial  ordered. 
DUNM.CAS.  WILLS — 7 


98  EXECUTION    OF   WILLS 

EXECUTION  OF  WILLS 

I.  Signing  by  Testator 
1.  SUFFICIENCY  OF  SIGNATURE* 

PILCHER  v.  PILCHER. 

(Supreme  Court  of  Appeals  of  Virginia,  1915.     117  Va.  356,  84  S.  E.  667, 

L.  R.  A.  1915D,  902.) 

Error  to  Chancery  Court  of  Richmond. 

Proceeding  by  Mrs.  Alice  McCabe  Pilcher  for  the  probate  of  an  in- 
strument as  the  will  of  Edwin  M.  Pilcher,  deceased,  opposed  by  John 
M.  Pilcher.  The  will  was  admitted  to  probate,  and  contestant  brings 
error.  Affirmed.  *  *  * 

The  instrument  offered  for  probate  was  written  by  Edwin  M.  Pilcher 
with  a  pencil  upon  the  back  of  a  sheet  containing  part  of  a  letter.  This 
instrument  read  as  follows:  "I  give  to  my  wife,  Alice  McCabe  Pil- 
cher, all  my  property,  real  and  personal,  E.  M.  P." 

WHITTLE,  J.2  Stripped  of  immaterialities,  the  dominant  question 
presented  by  this  record  for  our  decision  is  the  validity  of  a  holograph 
will,  at  the  end  of  which  the  writer,  to  authenticate  the  paper,  has  at- 
tached his  initials  by  way  of  signature,  instead  of  his  full  name.  *  *  * 

Va.  Code  19(H,  §  2514,  reads  as  follows:  "No  will  shall  be  valid 
unless  it  be  in  writing  and  signed  by  the  testator,  or  by  some  other  per- 
son in  his  presence  and  by  his  direction,  in  such  manner  as  to  make  it 
manifest  that  the  name  is  intended  as  a  signature ;  and  moreover,  un- 
less it  be  wholly  written  by  the  testator,  the  signature  shall  be  made  or 
the  will  acknowledged  by  him  in  the  presence  of  at  least  two  compe- 
tent witnesses,  present  at  the  same  time ;  and  such  witnesses  shall  sub- 
scribe the  will  in  the  presence  of  the  testator,  but  no  form  of  attesta- 
tion shall  be  necessary." 

It  will  be  observed  that  the  statute  makes  no  distinction  in  the  char- 
acter of  the  signature,  or  what  constitutes  a  sufficient  signature,  be- 
tween holograph  and  attested  wills.  It  gives  precisely  the  same  force 
and  effect  to  the  former  that  it  accords  to  the  latter.  By  force  of  the 
statute  one  is  made  the  equivalent  of  the  other,  though  the  manner  of 
proving  the  two  kinds  of  instruments  is  different;  nevertheless,  each 
possesses  the  same  authenticity. 

1  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  66. 

2  The  statement  of  facts  is  abbreviated  and  part  only  of  the  opinion  is 
given. 


SIGNING   BY   TESTATOR  99 

Now,  all  the  authorities,  English  and  American  (including  the  quaere 
in  McBride  v.  McBride  [26  Grat.  (67  Va.)  476])  agree  that,  if  this 
will  had  been  attested,  it  ^vould  have  been  well  signed  under  the  Eng- 
lish statute.  Therefore,  being  holograph,  it  must  follow  that  it  is  well 
signed  under  the  Virginia  statute,  since  that  statute  does  not  require 
attestation  in  such  case. 

Nor  does  the  Virginia  statute  define  what  shall  constitute  a  "signa- 
ture," but  only  prescribes  that  the  will  shall  be  signed  "in  such  man- 
ner as  to  make  it  manifest  that  the  name  is  intended  as  a  signature." 

Webster's  New  International  Dictionary  defines  "signature"  to  be: 
"A  sign,  stamp,  or  mark  impressed,  as  by  a  seal.  *  *  *  "  Also : 
"The  name  of  any  person,  written  in  his  own  hand,  to  signify  that 
the  writing  which  precedes  accords  with  his  own  wishes  or  intentions ; 
a  sign  manual ;  an  autograph." 

The  Standard  Dictionary  defines  it  to  be :  "The  name  of  a  person, 
or  something  representing  his  name,  written,  stamped,  or  inscribed 
by  himself,  or  by  deputy.  *  *  *  " 

No  dictionary,  so  far  as  we  are  advised,  restricts  the  meaning  of 
"signature"  to  a  written  name;  therefore,  according  to  these  defini- 
tions, what  constitutes  a  signature  must  largely  depend  upon  the  cir- 
cumstances of  each  particular  case,  though  in  all  cases  the  intent  is  a 
vital  factor.  Whatever  symbol  is  employed,  it  must  appear  that  it  "is 
intended  as  a  signature." 

Although,  as  remarked,  there  is  no  decision  of  this  court  directly  in 
point,  authority  in  this  country  is  abundant  for  the  proposition  that  the 
use  of  his  initials  by  a  testator  animo  signandi  is  a  sufficient  signing 
of  his  name. 

The  discussion  of  the  subject  in  Knox's  Appeal  (1889),  131  Pa. 
220,  18  Atl.  1021,  6  L.  R.  A.  353,  17  Am.  St.  Rep.  798,  is  instructive. 
In  that  case  a  letter,  testamentary  in  character,  in  the  handwriting  of 
the  deceased  and  signed  by  her  with  her  Christian  name  only,  was 
held  to  be  a  valid  will.  And  the  court  was  of  opinion  that  a  will  signed 
by  the  testator  with  his  initials  made  a  stronger  case  for  upholding  the 
instrument.  It  quotes  with  approval  from  Browne  on  the  Statute 
of  Frauds,  §  362,  as  follows :  "In  cases  where  the  initials  only  of  the 
party  are  signed,  it  is  quite  clear  that,  with  the  aid  of  parol  evidence 
which  is  admitted  to  apply  to  them,  the  signature  is  to  be  held  valid." 

In  1  Jarman  on  Wills  (6th  Am.  Ed.)  106-108,  it  is  said :  "It  has 
been  decided  that  a  mark  is  sufficient,  notwithstanding  the  testator  is 
able  to  write,  and  though  his  name  does  not  appear  on  the  face  of  the 
will.  A  mark  being  sufficient,  of  course  the  initials  of  the  testator's 
name  would  also  suffice." 

The  leading  text- writers  speak  with  one  voice  on  the  subject.  Jar- 
man on  Wills,  supra;  Page  on  Wills,  §  172;  Schouler  on  Wills  (3d 
Ed.)  §  303 ;  1  Redfield  on  the  Law  of  Wills  (3d  Ed.)  pp.  203,  205 ; 
Rood  on  Wills,  §§  254,  255. 


100  EXECUTION    OF  WILLS 

That  testator's  signature  by  a  mark  is  sufficient  is  well  settled  by 
the  Virginia  authorities.  Smith  v.  Jones,  6  Rand.  (27  Va.)  36 ;  Clarke 
v.  Dunnavant,  10  Leigh  (37  Va.)  14;  Rosser  v.  Franklin,  6  Grat.  (47 
Va.)  1,  52  Am.  Dec.  97;  3  Lomax's  Dig.  (2d  Ed.)  pp.  38,  '70;  2  Minor 
on  Real  Property,  §  1252;  Long's  Notes  on  the  Law  of  Wills  (1910), 
p.  17. 

Adverting  for  a  moment  to  the  facts :  We  have  before  us  a  paper 
which,  though  exceedingly  brief,  is  distinctly  testamentary  in  character 
and  terms,  and  by  which  the  disposition  of  the  property,  in  the  cir- 
cumstances, was  a  natural  one.  Testator  was  a  lawyer  in  full  posses- 
sion of  his  mental  faculties,  and  there  is  no  question  that  the  paper 
was  wholly  written  by  him,  and  signed  with  his  initials  at  the  appro- 
priate place  for  his  signature,  the  end  of  the  instrument.  Immediately 
before  the  paper  was  written,  testator  said  to  his  wife  and  her  sister, 
Mrs.  Woods :  "I  am  going  to  make  my  will,"  and  after  it  was  written, 
holding  the  paper  up,  he  said:  "Girls,  this  is  my  will.  I  have  left 
Allie  everything  I  have."  In  response  to  Mrs.  Woods'  comment  on 
the  brevity  of  the  document,  he  remarked,  "The  shorter,  the  better." 
When  she  called  attention  to  the  use  of  his  initials,  he  replied  "Why, 
that  is  as  good  a  will  as  any  man  can  make;  that  will  hold  in  any 
court,  almost  a  mark  will  go,  Belle."  He  then  said  to  Mrs.  Woods : 
"I  want  you  to  preserve  this.  That  is  my  will.  I  have  left  every- 
thing to  Alice.  I  want  you  to  see  that  she  takes  care  of  it."  This 
evidence,  and  it  is  uncontradicted,  plainly  establishes  testamentary  in- 
tent and  that  the  initials  were  used  animo  signandi. 

The  decisions  of  this  court  hold  that  the  position  of  the  signature 
at  the  end  of  the  will  furnishes  sufficient  internal  evidence  of  finality 
or  completion  of  intent.  Ramsey  v.  Ramsey,  13  Grat.  (54  Va.)  664, 
70  Am.  Dec.  438;  Roy  v.  Roy,  16  Grat.  (57  Va.)  418,  419,  84  Am. 
Dec.  696;  McBride  v.  McBride,  26  Grat.  (67  Va.)  476,  487;  Din- 
ning v.  Dinning,  102  Va.  467,  469,  470,  46  S.  E.  473. 

We  entertain  no  doubt,  either  from  the  standpoint  of  reason  or  au- 
thority, that  the  writing  in  controversy  was  executed  in  substantial 
compliance  with  the  statute,  and,  as  the  chancery  court  held,  is  the  true 
last  will  and  testament  of  Edwin  Pilcher,  deceased.  *  *  *  Af- 
firmed.   

WAITE  v.  FRISBIE. 

(Supreme  Court  of  Minnesota,  1891.    45  Minn.  361,  47  N.  W.  1069.) 

GILFILLAN,  C.  J.8  This  is  a  contest  over  the  will  of  Josephine  O. 
Frisbie  presented  for  probate.  The  will  was  allowed  in  the  probate 
court,  and  an  appeal  was  taken  by  the  contestants  to  the  district 
court.  *  *  * 

Another  question  raised  in  the  case  is,  in  view  of  a  second  trial, 
proper  for  us  to  consider.  When  the  instrument,  as  it  is  present- 

«  Part  only  of  the  opinion  Is  given. 


SIGNING   BY   TESTATOR  101 

ed  for  probate,  was  fully  written  out,  the  deceased  was  unable  to 
sign  it;  she  was  unable  to  speak  or  express  her  wishes,  unless  by 
gestures  or  looks.  The  testimony  on  the  part  of  the  proponent  is  that 
it  was  suggested  to  her  that  her  name  should  be  signed  by  another,  to 
which  she  assented,  as  those  witnesses  understood  her  by  a  nod.  Her 
name  was  signed  by  the  person  indicated,  and,  it  being  suggested  to 
her  to  make  her  mark,  she  placed  her  hand  on  the  hand  of  the  person 
who  had  signed  her  name,  in  which  he  held  the  pen,  and  he  made  the 
mark.  On  the  part  of  the  contestants  the  testimony  is  that  the  hus- 
band of  deceased  told  the  person  to  sign  her  name,  and  after  that  was 
done  he  placed  her  hand  on  that  of  the  person  so  signing,  and  the  lat- 
ter made  the  mark.  The  court  below  instructed  the  jury :  "In  so  far 
as  the  manual  effort  of  signing  the  will  is  concerned,  it  is  not  neces- 
sary that  she  should  have  taken  any  part  in  the  actual  formation  of 
the  characters  or  the  drawing  of  the  cross  or  mark.  The  physical 
effort  might  be  done  by  some  one  else.  But  it  is  necessary  that  her, 
intelligence  and  understanding  should  have  gone  with  the  act.  If  that 
was  done,  the  amount  of  physical  effort  she  put  into  the  act  was  imma- 
terial. It  is  immaterial  whether  or  not  she  laid  her  hand  on  the  hand 
of  Mr.  Pitcher  at  the  time  he  wrote  her  name  or  made  the  mark ;  it  is 
entirely  immaterial  whether  or  not  her  fingers  were  touching  the  pen 
at  that  time;  but  it  is  material  and  necessary  that  she  should  have 
known  what  was  being  done,  and  have  assented  to  it  as  her  way  of 
signing  the  will.  If  the  testator's  knowledge  and  consent  accompanied 
the  act  of  signing  the  will,  it  is  sufficient,  although  she  may  not  have 
had  any  part  in  the  physical  effort  of  signing." 

We  think  the  substance  of  what  the  court  intended,  and  what  the 
jury  would  understand,  was  that  although  she  did  not  sign  the  will 
either  by  writing  her  name  or  making  her  mark,  if  it  was  done  by 
another  person  with  her  knowledge  and  assent,  that  would  be  suffi- 
cient. It  is  a  rule  in  respect  to  the  execution  of  wills  that  the  require- 
ments of  the  law  shall  be  strictly  complied  with.  The  circumstances 
under  which  such  instruments  are  executed,  or  claimed  to  have  been 
executed,  are  frequently  such  that  a  loose  construction  of  what  the 
party  did  or  intended  to  do, — a  substitution  of  anything  else  as  an 
equivalent  for  what  the  law  requires, — would  incur  the  danger  of 
accepting  as  his  will  an  instrument  not  really  intended  as  such.  The 
statute  (section  5,  c.  47,  Gen.  St.  1878)  provides  that  a  will  shall  be 
"signed  at  the  end  thereof  by  the  testator,  or  by  some  person  in  his 
presence  and  by  his  express  direction."  The  requirement  that  the 
signing  by  another  shall  be  by  "express  direction"  seems  to  exclude 
mere  implied  assent  to,  or  acquiescence  in,  or  subsequent  ratification 
of,  the  signing.  Chief  Justice  Gibson  in  Greenough  v.  Greenough,  11 
Pa.  489,  51  Am.  Dec.  567,  construing  a  similar  statute  in  Pennsylvania, 
said :  "Why  use  emphatic  words  if  there  was  no  design  to  distinguish 
between  an  express  and  an  implied  direction?  Though  express  di- 
rection may  be  proved  by  presumptive  evidence,  it  follows  not  that 


102  EXECUTION    OF   WILLS 

a  subsequent  act  of  ratification  by  the  mark  is  presumptive  evidence 
of  it.  A  direction  precedes  the  act  to  be  done  in  obedience  to  it ;  and 
in  this  respect  a  direction  expressed  in  words  differs  from  a  direction 
implied  from  subsequent  assent.  *  *  *  As  signing  by  the  testator's 
assent  would  have  been  good  at  the  common  law,  the  statute  was  enact- 
ed, not  to  authorize  it,  but  to  regulate  the  evidence  of  it,  by  requiring 
more  than  a  wink  or  a  nod,  or  a  word  not  less  ambiguous,  and  there- 
fore not  less  liable  to  misconstruction.  The  purpose  of  it  was  to  have 
a  straightforward  direction  which  would  leave  no  pretense  for  the 
touch  of  an  insensible  or  dead  man's  hand  to  give  color  to  an  artful 
tale  told  by  willing  witnesses.  In  other  transactions  the  mark  is  some- 
times used  as  a  badge  of  assent,  but  the  assent  required  by  the  statute 
is  to  be  signified,  not  by  a  badge  attached  to  the  name,  but  by  a  direc- 
tion to  attach  the  name  to  the  paper." 

We  have  made  so  large  a  quotation  from  the  opinion  in  that  case 
because  it  expresses  what  we  think  the  statute  intends,  and  also  in- 
dicates some  of  the  dangers  the  statute  was  intended  to  guard  against. 
The  direction  to  sign  must  precede  the  act  of  signing.  Mere  knowl- 
edge by  the  testator  that  another  has  signed,  or  is  signing,  without 
previous  direction,  and  assent  to  or  acquiescence  in  it,  to  be  inferred 
from  looks,  or  a  nod  of  the  head,  or  motion  of  the  hand,  or  other  am- 
biguous token,  is  not  enough.  We  do  not  mean  that  the  express  di- 
rection must  be  in  words.  A  person  unable  to  speak  may  sometimes 
be  able  to  convey  his  wish  that  another  sign  his  name  as  unequivocally 
by  gestures  as  though  he  spoke  the  words,  but  the  meaning  of  such 
gestures  must  be  as  clear  and  unambiguous  as  the  words;  and  the 
act  of  signing  must  be  in  obedience  to  the  direction  thus  conveyed.  It 
follows  from  what  we  have  said  that  mere  assent  or  acquiescence,  im- 
plied by,  or  to  be  inferred  from,  looks  or  gestures,  when  another  sug- 
gests that  A.  or  B.  sign  the  name,  is  not  such  an  express  direction  as 
the  statute  requires.  The  instruction  was  therefore  erroneous.  Order 
affirmed. 


2.  TIME* 


In  re  BULLIVANT'S  WILL. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1913.    82  N.  J.  Eq.  340,  88  Atl. 
1093,  51  L.  R.  A.  [N.  S.]  169,  Ann.  Cas.  1915C,  72.) 

Appeal  from  Prerogative  Court. 

In  the  matter  of  the  will  of  George  S.  Bullivant.  Decree  based  on 
a  finding  that  the  will  was  signed  by  testator  as  the  statute  requires,  and 
contestant  appeals. 

SWAYZE,  J.  We  agree  with  the  judge  of  the  orphans'  court  that 
the  evidence  shows  a  publication  of  the  will.  The  only  legal  question 

«  For  a  discussion  of  principles,  see  Gardner  on  Wills  (2d  EdJ  §§  65,  66. 


SIGNING   BY  TESTATOR  103 

involved  in  the  case  is  whether  the  will  was  signed  by  the  testator  as 
the  statute  requires.  What  happened  was  that  the  testator,  after  he 
had  subscribed  his  name,  desired  to  insert  a  bequest  of  an  automobile. 
An  interlineation  to  effectuate  that  intent  was  made,  the  will  was  then 
published,  and  the  signature  acknowledged  in  the  presence  of  the 
witnesses,  who  thereupon  subscribed  their  names  as  witnesses  in  the 
presence  of  the  testator.  The  point  made  is  that  the  testator  never 
subscribed  his/  name  to  the  will  as  completed,  and  the  question  is 
whether  his  acknowledgment  of  his  own  sign  manual  amounts  to  a 
signing.  The  statute  makes  a  distinction  between  the  act  of  the  tes- 
tator and  the  act  of  the  subscribing  witnesses.  C.  S.  5867,  pi.  24.  He 
must  sign ;  they  must  subscribe  their  names.  Under  the  English  stat- 
ute before  1837,  there  had  been  several  decisions  as  to  the  meaning  of 
the  word  "sign."  A  mark,  initials,  a  wrong  or  assumed  name,  an  en- 
graved die,  were  all  held  to  suffice.  1  Jarman,  201  ff.  (Randolph  & 
Talcott's  Edition);  1  Williams  on  Executors  (6th  American  Edition) 
103.  In  short  the  construction  put  upon  the  word  "signed"  by  the 
courts  is  the  original  meaning  of  a  signum  or  sign,  rather  than  the 
derivative  meaning  of  a  sign  manual  or  handwriting.  This  construc- 
tion harmonizes  with  the  change  in  the  language  of  the  statute  when 
it  came  to  the  subscribing  witnesses  who  are  required  to  subscribe 
their  names.  This  signum  must  be  the  sign  of  the  testator,  as  Chan- 
cellor Zabriskie  held.  In  the  Matter  of  Gertrude  Rice  McElwaine,  18 
N.  J.  Eq.  499.  The  question,  therefore,  comes  to  this,  Can  a  testator 
adopt  as  his  sign  his  own  sign  manual  made  at  the  foot  of  the  will 
before  its  completion?  We  see  no  reason  why  he  may  not  do  so  as 
well  as  adopt  a  mark,  an  engraved  signature,  or  a  false  name,  as 
held  in  the  cases  cited  by  Jarman.  The  important  thing  is  that  the  will 
should  be  complete  at  the  time  of  publication  and  attestation.  As 
Justice  Gray  said,  in  Chase  v.  Kittredge,  11  Allen  (Mass.)  49,  64,  87 
Am.  Dec.  687:  "A  testator  may  alter  his  willl  as  he  pleases  at  any 
time  before  it  is  formally  attested.  He  may  write  it  out  in  full,  and 
sign  it,  and  it  has  no  effect  as  a  will  until  duly  attested.  It  is  unim- 
portant whether  it  is  or  is  not  signed  by  the  testator  until  it  is  produced 
to  the  witnesses.  It  is  only  important  that  it  should  be  his  will  in 
writing  and  signed  when  they  attest  and  subscribe  it,  and  it  is  equally 
his  will  in  writing  whether  signed  in  their  presence  or  at  some  pre- 
vious time."  This  opinion  was  cited  by  us  on  another  point  in  Lacey 
v.  Dobbs,  63  N.  J.  Eq.  325,  50  Atl.  497,  55  L.  R.  A.  580,  92  Am.  St. 
Rep.  667,  without  any  suggestion  of  disapproval. 

It  may  be  conceded  that  under  the  circumstances  of  this  case  the 
will  offered  for  probate  was  not  signed  by  the  testator  within  the 
meaning  of  the  statute  until  he  adopted  his  own  handwriting  as  his 
signature  to  the  will  by  acknowledging  it  to  be  such  in  the  presence  of 
the  witnesses.  That  acknowledgment  made  it  his  signature  to  the  will 
as  it  stands.  As  we  said  in  Ludlow  v.  Ludlow,  36  N.  J.  Eq.  597,  at 


104  EXECUTION    OF  WILLS 

page  600,  the  statute  of  1851  made  the  acknowledgment  of  the  sig- 
nature proof  of  signing.  The  opinion  of  Chancellor  Zabriskie  in  the 
McElwaine  Case  is  not  to  the  contrary.  There  the  signature  had  been 
made  by  another,  the  testatrix  "did  not,  after  her  name  was  signed, 
touch  the  paper,  or  say  that  it  was  her  signature,  and  there  was  no 
proof  that,  after  her  name  was  signed,  she  acknowledged  or  declared 
that  it  was  her  will."  The  ordinary  in  that  case  was  dealing  with  a 
signature  made  by  another,  and  he  properly  dwelt  on  the  danger  in- 
volved, and  intimated  that  even  that  would  suffice  if  done  in  the  testa- 
tor's presence  and  by  his  express  direction.  The  danger  dwelt  upon 
by  the  ordinary  in  that  case  is,  however,  no  greater  than  the  danger  of 
openin^  the  door  to  parol  testimony  to  prove  that  the  sign  manual 
of  the  testator  duly  acknowledged  as  his  signature  was  not  signed  by 
him  to  the  completed  paper  on  which  it  is  written.  What  Chancellor 
Zabriskie  feared  was  the  lack  of  any  act  by  the  testator ;  but  in  this 
case  we  have  such  an  act.  It  would  have  been  mere  idle  form  for  him 
to  write  his  name  again.  He  must,  indeed,  adopt  by  his  acknowledg- 
ment the  name  already  written  as  his  sign  to  the  then  completed  will ; 
but  that,  also,  he  did.  Later  Chancellor  McGill,  in  Fritz  v.  Turner,  46 
N.  J.  Eq.  515,  22  Atl.  125,  held  that  the  signature  was  good,  although 
the  testator's  hand  was  guided  by  the  draughtsman,  and  it  was  a  dis- 
puted question  whether  the  testator  could  write  at  all.  "The  impor- 
tant question,"  he  said,  "is  whether  the  testator  had  the  purpose  to 
write  his  name  or  make  his  mark  upon  the  will  as  his  signature  to  it, 
and  whether,  in  fact,  he  did  make  such  a  physical  effort  to  sign  as 
resulted  in  a  mark  upon  the  paper  by  which  the  paper  could  be  identi- 
fied." While  the  decree  was  reversed  (49  N.  J.  Eq.  343,  25  Atl.  963), 
it  does  not  seem  to  have  been  on  any  ground  that  affected  the  chan- 
cellor's view  on  this  point,  for,  if  that  had  been  the  case,  it  would 
have  been  quite  unnecessary  for  the  Court  of  Errors  and  Appeals  to 
send  the  case  back  for  further  testimony ;  the  undisputed  facts  would 
have  been  fatal  to  the  validity  of  the  will. 

If  we  look  to  the  analogies  of  the  law,  we  are  sustained  in  our  view. 
A  promissory  note  must  be  signed,  and  a  deed  must  be  sealed.  If  it 
could  be  said  that  these  requirements  were  not  complied  with  in  cases 
where  the  instruments  were  altered,  all  the  discussion  in  the  books  as 
to  the  distinction  between  material  and  immaterial  alterations  and  be- 
tween alterations  by  a  party  and  alterations  by  a  stranger,  would  have 
been  idle  since  it  would  have  sufficed  to  say  that  the  document  pro- 
duced has  never  been  signed  or  sealed.  Has  it  ever  been  suggested 
that  a  promissory  note  ceased  to  be  such  because  altered  by  the  maker 
after  he  had  put  his  name  thereto,  or  that  a  deed  was  not  sealed  be- 
cause after  the  seal  was  affixed  an  alteration  was  made  by  the  grantor  ? 
In  these  cases  the  instrument  speaks  from  the  time  of  delivery;  a 
will  becomes  effective  by  acknowledgment  of  the  signature  and  pub- 
lication. 


SIGNING  BY   TESTATOR  105 

For  these  reasons,  we  think  the  will  offered  for  probate  was  signed 
by  the  testator  as  the  statute  requires,  and  the  decree  is  affirmed.  The 
case,  however,  is  a  proper  one  for  allowance  of  costs  out  of  the  estate. 

GUMMERE,  C.  J.,  dissents. 

GARRISON,  J.  (dissenting).  I  think  that  the  signing  of  his  will  by  a 
testator  must  under  our  statute,  be  the  signing  of  his  written  will. 
The  statute  calls  it  the  "signature"  of  the  testator,  and,  whether  it  be 
his  sign,  mark,  signum,  or  sign  manual,  such  testamentary  act  must 
take'  place  in  the  order  named  in  the  statute — be  after  the  writing  of 
the  will.  It  is  this  "signature"  that  the  testator  may  acknowledge  to 
the  witnesses  in  case  it  was  not  made  in  their  presence ;  such  acknowl- 
edgment is  therefore  a  substitute  in  the  alternative  for  the  visual  act 
of  the  witnessing  of  the  making  of  the  signature.  If  the  witnesses 
have  witnessed  the  signing  by  the  testator,  an  acknowledgment  is  not 
authorized  by  the  statute,  and  if  it  were,  would  not  advance  the  trans- 
action beyond  what  such  witnesses  had  in  fact  witnessed.  In  fine  the 
acknowledgment  merely  identifies  the  testator's  signature  as  of  the 
time  when,  had  the  witnesses  seen  him  make  it,  they  would  have  wit- 
nessed the  act  that  is  thus  acknowledged  solely  because  they  did  not 
so  witness  it.  Whether  witnessed  or  acknowledged,  the  testamentary 
act  in  question  remains  identically  the  same.  The  present  case,  there- 
fore, by  force  of  the  testator's  acknowledgment  of  his  signature, 
stands  precisely  as  if  the  witnesses  had  seen  him  make  it,  in  which  case 
they  would  have  seen  him  sign  his  name  to  a  paper  that  was  not  his 
will.  Such  a  signing,  whether  it  be  witnessed  or  acknowledged,  is 
not  the  statutory  signing  by  the  testator  of  his  written  will,  for  a  will 
is  not  written  until  it  is  completed  any  more  than  it  is  before  it  is  com- 
menced. A  will  thus  executed  in  the  inverse  order  of  the  statute,  i.  e., 
first  signed,  then  reduced  to  writing,  and  such  previous  signature  then 
acknowledged,  is  no  more  a  compliance  with  the  statute  than  if  the 
witnesses  had  witnessed  the  testator  write  his  name  on  a  piece  of 
blank  paper,  on  which,  over  his  name,  his  will  was  afterwards  written. 
In  fine,  if  a  testator  has  not  in  fact  signed  his  written  will,  no  acknowl- 
edgment he  can  make  can  alter  that  fact  or  supply  that  deficiency,  for 
it  is  only  his  signature  he  can  acknowledge — not  his  will — and  in  the 
last  analysis  the  fundamental  error  is  that  of  construing  the  statute 
as  if  it  authorized  the  testator  to  acknowledge  his  will,  i.  e.,  to  adopt  as 
his  will  a  writing  that  had  not  been  signed  by  him.  The  proper  con- 
struction of  the  statute  stated  in  a  single  sentence  is  that  the  acknowl- 
edgment is  a  substitute  for  the  circumstantial  act  of  the  witnesses,  i.  e., 
their  actual  witnessing  of  the  writing  of  his  signature  by  the  testator 
in  case  they  have  omitted  so  to  do ;  but  that  it  is  not  a  substitute  for 
the  essential  act  of  the  testator,  i.  e.,  the  signing  of  his  written  will, 
which  in  no  case  can  he  omit  to  do.  Being  unable  to  adopt  a  construc- 
tion of  the  statute  that  varies  its  plain  terms,  and  which,  by  dispensing 
with  the  signing  by  the  testator  of  his  written  will,  dispenses  with  all 


106  EXECUTION    OF  WILLS 

of  the  safeguards  thus  thrown  around  this  essential  testamentary  act, 
no  course  is  open  to  me  but  to  deny  that  the  will  in  the  present  case  was 
properly  admitted  to  probate. 


3.  PLACE' 


MEADS  v.  EARLE. 

(Supreme  Judicial  Court  of  Massachusetts,  1910.     205  Mass.  553,  91  N.  E. 
916,  29  L.  R.  A.  [N.   S.]  63.) 

HAMMOND,  J.9  This  was  an  appeal  from  a  decree  of  the  probate 
court  disallowing  an  instrument  as  the  last  will  of  Sarah  J.  Arm- 
strong. The  case  was  heard  by  a  single  justice  of  this  court  upon  an 
inspection  of  the  will,  the  agreed  facts  and  the  depositions  of  the  three 
subscribing  witnesses.  The  appellee  requested  the  judge  to  rule  as 
matter  of  law  that  the  instrument  was  not  signed  by  the  testatrix  and 
attested  and  subscribed  in  her  presence  by  three  competent  witnesses 
in  accordance  with  the  requirements  of  Rev.  Laws,  c.  135,  §  1.  The 
judge  declined  so  to  rule  and  found  as  facts  "that  so  far  as  the  will 
is  in  manuscript,  the  handwriting  including  her  name  or  signature  is 
that  of  Sarah  J.  Armstrong;  that  although  she  did  not  sign  at  the 
end  of  the  instrument,  yet  when  she  wrote  her  name  at  the  beginning 
of  the  will,  it  was  with  the  intention  that  this  act  was  a  signing  of 
the  will;  that  independently  of  the  attestation  clause,  she  by  words 
and  conduct  acknowledged  and  declared  the  will  before  the  subscrib- 
ing witnesses  and  that  the  subscribing  witnesses  signed  the  attestation 
clause  in  her  presence  at  her  request  and  upon  her  acknowledgment 
and  declaration  that  it  was  her  will,  although  neither  of  them  saw 
her  signature." 

Having  so  found  he  ruled  that  the  document  was  signed,  attested 
and  subscribed  "within  the  meaning  of  the  statute,"  and  that  it  was 
a  valid  will.  The  case  is  before  us  upon  his  report.  If  the  ruling  re- 
quested by  the  appellee  should  have  been  given,  a  decree  is  to  be  en- 
tered affirming  the  decree  of  the  probate  court;  otherwise  a  decree  is 
to  be  entered  reversing  that  decree,  admitting  the  will  to  probate  and 
remanding  the  case  to  that  court  for  further  proceedings. 

The  findings  of  the  single  justice  are  to  stand  unless  plainly  wrong. 
At  the  time  of  the  execution  of  the  will  Miss  Armstrong  was  tem- 
porarily stopping  at  the  Manhattan  Hotel  in  New  York  City,  on  the 
eve  of  a  voyage  to  Italy.  It  is  a  reasonable  inference  from  the  testi- 
mony that  the  will  was  drafted  just  before  its  execution.  She  had 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  66. 

•  A  portion  of  the  opinion  is  omitted. 


SIGNING   BY   TESTATOR  107 

procured  a  blank  form  containing  at  the  beginning  the  following  print- 
ed words,  to  wit:  "Be  it  remembered  that  I,  ,  of ,  in 

the  commonwealth  of  Massachusetts,  being  of  sound  mind  and  mem- 
ory, but  knowing  the  uncertainty  of  this  life,  do  make  this  my  last 
will  and  testament.  After  the  payment  of  my  just  debts  and  funeral 
charges,  I  bequeath  and  devise  as  follows."  At  the  end  of  the  blank 
was  printed  the  testimonium  clause,  blanks  being  left  for  the  date,  and 
following  that  clause  was  the  printed  attestation  clause  as  follows: 
"On  this day  of ,  A.  D.  19. ., ,  of ,  Massa- 
chusetts, signed  the  foregoing  instrument  in  our  presence,  declaring  it 

to  be last  will ;  and  as  witnesses  thereof  we  three  do  now  at 

request,  in presence,  and  in  the  presence  of  each  other, 

hereto  subscribe  our  names."  Between  the  printed  words  at  the 
beginning  of  the  will  and  the  printed  in  testimonium  words  at  the 
end,  there  was  an  extended  blank  space  for  the  body  of  the  will,  but 
the  space  between  the  latter  clause  and  the  attestation  clause  was 
small,  and  there  was  no  line,  dotted  or  otherwise,  indicating  the  place 
for  a  signature,  while  following  the  attestation  clause  there  were  three 
dotted  lines  indicating  where  the  subscribing  witnesses  were  to  sign. 

With  this  blank  before  her  she  begins,  apparently  unaided,  to  write 
her  will.  She  first  makes  the  proper  changes  in  the  exordium.  She 
fills  the  blank  space  after  the  word  "I"  with  her  name.  She  writes  in 
the  next  blank  space,  "Cincinnati,  Ohio,"  and  crosses  out  the  words 
"in  the  commonwealth  of  Massachusetts."  As  thus  changed  the  ex- 
ordium reads :  "Be  it  remembered  that  I,  Sarah  J.  Armstrong,  of  Cin- 
cinnati, Ohio,  being  of  sound  mind,"  etc.  She  proceeds  to  write  in  the 
blank  space  provided  for  the  body  of  the  will.  The  will  deals  with 
her  estate  in  great  detail,  containing  nearly  20  different  bequests.  She 
then  fills  the  proper  spaces  in  the  in  testimonium  and  attestation  claus- 
es, putting  her  name  and  residence  and  the  pronouns  in  the  proper 
places  in  the  latter  clause.  After  the  attestation  clause  and  below  the 
dotted  lines  indicating  the  places  for  the  signatures  of  the  three  wit- 
nesses, she  writes  the  clause  nominating  the  executors  and  requesting 
that  they  be  required  to  give  no  bonds.  Every  written  word  is  in  her 
handwriting.  The  will  is  clearly  and  intelligently  drawn.  The  evi- 
dence of  the  subscribing  witnesses  shows  that  she  was  a  woman  of 
refinement  and  superior  mental  endowment.  She  had  been  for  several 
years  in  charge  of  a  young  ladies'  school;  and  from  the  glimpses  we 
get  of  her  it  is  not  difficult  to  detect  her  resolute  and  self-reliant  na- 
ture. There  is  no  indication  that  she  was  not  in  good  health.  In  a 
day  or  two  she  was  to  take  the  steamer  for  Italy. 

With  this  document  this  intelligent,  self-reliant  woman  came  to  Miss 
Hall,  the  first  witness,  who  describes  the  interview  thus:  "I  was  at 
the  Manhattan  Hotel  writing  home  when  Miss  Armstrong  came  up  to 
me  and  asked  me  if  I  would  sign  her  will  as  a  witness.  She  said :  'I 
would  not  ask  this  of  you,  but  Miss  Hunter  and  the  Clays  cannot  be- 
cause they  are  mentioned  in  the  will,  and  it  requires  three  witnesses ; 


108  EXECUTION    OF  WILLS 

the  Misses  Jaudon  have  said  they  would.'  She  then  sat  down  and  wrote 
something  on  the  paper  which  I  did  not  read,  then  handed  it  to  me 
and  I  signed  my  name  where  she  told  me  to;  she  was  by  my  side 
when  I  signed  it." 

Subsequently,  and  apparently  upon  the  same  day,  the  other  two 
witnesses  signed.  Each  of  the  three  witnesses  testified  in  substance 
that  Miss  Armstrong  stated  that  the  document  was  her  last  will  and 
asked  her  to  sign  as  a  witness.  In  no  other  way  did  Miss  Armstrong 
mention  her  signature  or  call  it  to  the  attention  of  the  witnesses. 
Shortly  afterwards  the  instrument,  thus  written  and  thus  attested,  was 
deposited  at  the  request  of  Miss  Armstrong  in  her  safe  deposit  vault, 
and  there  remained  until  her  death. 

There  can  be  no  doubt  that  she  intended  to  make  and  supposed  she 
had  made  a  valid  will.  The  care  she  took  in  writipg  the  paper,  in  seeing 
to  its  attestation,  and  in  putting  and  keeping  it  in  a  safe  place  shows 
that.  She  does  not  appear  to  have  been  advised  or  assisted  by  any  one. 
She  personally  superintended  the  whole  work.  There  was  however 
no  signature  at  the  end;  and  it  is  contended  by  the  contestants  that 
the  trial  judge  was  not  warranted  in  finding  that  she  wrote  her  name 
at  the  beginning  animo  signandi. 

The  finding  must  be  interpreted  to  mean,  not  simply  that  after 
writing  her  whole  will  she  adopted  as  her  signature  her  name  as  writ- 
ten previously  in  the  exordium,  but  that  at  the  time  she  wrote  her 
name  there  she  intended  that  it  should  stand  as  her  signature  to  the 
will  when  completed,  and  that  this  intent  continued  to  the  end.  Such 
a  finding  is  perfectly  consistent  with  what  she  did,  and  is  not  incon- 
sistent with  any  act  of  hers.  It  explains  any  apparent  incongruity  in 
the  evidence.  It  welds  all  the  circumstances  into  one  harmonious 
whole  and  is  supported  by  the  evidence. 

The  will  was  therefore  properly  signed.  Lemayne  v.  Stanley,  3  Lev. 
1.  And  the  signature  was  properly  attested.  Dewey  v.  Dewey,  1 
Mete.  349,  35  Am.  Dec.  367,  and  cases  cited;  Adams  v.  Field,  21 
Vt.  256.  The  ruling  requested  by  the  appellee  was  properly  refus- 
ed. *  *  * 

In  accordance  with  the  terms  of  the  report  a  decree  is  to  be  entered 
reversing  the  decree  of  the  probate  court,  admitting  the  will  to  probate, 
and  remanding  the  case  to  that  court  for  further  proceedings.  So 
ordered. 


SIGNING   BY  TESTATOR  109 


Appeal  of  WINELAND  et  al. 

{Supreme  Court  of  Pennsylvania,  1888.     118  Pa.  37,  12  Atl.  301,  4  Am.  St 

Rep.   571.) 

This  is  an  appeal  by  John  Wineland  from  a  decree  admitting  the  will 
of  Benjamin  Wineland,  deceased,  to  probate. 

PAXSON,  J.  The  first  assignment  of  error  presents  the  only  ques- 
tion we  need  discuss.  Said  assignment  is  as  follows :  "The  court  erred 
in  affirming  the  decree  of  the  register,  and  in  overruling  and  dismissing 
the  first  exception  filed  before  the  register  upon  the  appeal  from  the 
decree  of  the  register,  which  said  exception  is  in  the  words  following, 
to-wit :  'The  said  alleged  last  will  and  testament  is  not  signed  at  the 
end  thereof  by  the  alleged  testator,  as  required  by  the  act  of  assembly 
in  such  case  made  and  provided.'  " 

The  statute  of  1833  enacts  that  "every  will  shall  be  in  writing,  and 
unless  the  person  making  the  same  shall  be  prevented  by  the  extremity 
of  his  last  sickness,  shall  be  signed  by  him  at  the  end  thereof,"  etc. 
The  will  of  Benjamin  Wineland  was  not  signed  by  him  at  the  end  there- 
of. It  was  signed  by  him,  but  after  the  signature  were  the  following 
words :  "I  will  that  Cephas  Lash  and  Henry  Wineland  be  my  execu- 
tors." This  was  not  signed  by  the  testator.  After  these  words  came 
the  attestation  clause,  which  was  in  the  usual  form.  The  register  ad- 
mitted the  will  to  probate,  and  granted  letters  testamentary  to  the  ex- 
ecutors above  named. 

Upon  appeal  from  the  register  to  the  orphans'  court,  the  said  court 
reversed  the  register  so  far  as  the  granting  of  letters  testamentary  was 
concerned,  and  ordered  letters  of  administration  cum  testamento  annexe 
to  be  issued  to  the  parties  legally  entitled  thereto.  The  learned  judge 
of  the  orphans'  court  makes  no  reference  in  his  opinion  to  the  question 
we  are  now  considering.  It  deals  with  other  questions  in  the  case 
which  would  be  important  if  the  will  were  properly  executed.  We 
think  it  is  not.  It  cannot  be  said  that  the  clause  appointing  the  execu- 
tors is  no  part  of  a  will.  It  is  an  important  part,  though  not  always 
essential.  It  cannot  be  brushed  aside  as  mere  idle  words  to  which  no 
meaning  is  to  be  attached.  Nor  can  they  be  rejected  and  so  much  of 
the  will  be  probated  as  stands  above  the  signature.  As  was  said  by 
Chief  Justice  Gibson,  in  Hays  v.  Harden,  6  Pa.  413:  "It  is  better, 
therefore,  that  an  informal  addition  should  operate  as  a  statutory  revo- 
cation of  the  whole  than  that  a  plain  injunction  should  be  frittered  away 
by  exceptions."  I  am  aware  that  our  act  of  1833  closely  resembles  the 
statute  of  1  Viet.  c.  26,  and  that  some  English  authorities  seem  to  sanc- 
tion the  doctrine  contended  for  by  the  appellees.  It  is  said,  in  Williams, 
Ex'rs,  69,  in  commenting  upon  the  above  statute  of  Viet.,  and  its  sup- 
plement of  15  Viet.  c.  24,  that  "in  order  to  get  rid  of  the  objection  that 
the  will  was  not  signed  at  the  foot  or  end  thereof,  the  court,  in  some 
cases,  has  thought  itself  justified  in  regarding  a  portion  running  below 


110  EXECUTION    OF  WILLS 

the  signature  as  forming  no  part  of  the  will,  and  granting  probate  ex- 
clusive of  that  portion."  Our  act  of  1833,  as  well  as  the  statute  of 
Viet.,  is  in  part  borrowed  from  the  British  statute  of  frauds,  two  sec- 
tions of  which  have  been  so  worded  by  judicial  construction  as  to  be 
practically  repealed.  We  do  not  propose  that  the  act  of  1833  should 
meet  with  the  same  fate.  The  legislature  have  laid  down  a  rule  so 
plain  that  it  cannot  be  evaded  without  a  clear  violation  of  its  terms.  No 
room  is  left  for  judicial  construction  or  interpretation.  It  says  a  will 
must  be  signed  at  the  end  thereof,  and  that's  the  end  of  it.  We  are  of 
opinion  that  this  paper  was  not  a  will  within  the  meaning  of  the  act  of 
1833,  and  that  it  was  error  to  admit  it  to  probate. 

The  decree  is  reversed,  at  the  costs  of  the  appellee,  and  it  is  ordered 
that  the  letters  of  administration  cum  testamento  be  revoked,  and  the 
probate  of  the  will  vacated. 


SAUNDERS  v.  J.  R.  T.  SAMARREG  CO. 
(Supreme  Court  of  Pennsylvania,  1903.    205  Pa.  632,  55  Atl.  763.) 

Bill  by  Albert  Saunders  against  the  J.  R.  T.  Samarreg  Company  for 
specific  performance  and  to  remove  a  cloud  on  title.  Decree  for  plain- 
tiff, and  defendant  appeals.  Affirmed. 

•  Plaintiff  had  contracted  to  sell  certain  real  estate  to  the  defendant. 
To  this  real  estate  plaintiff  derived  title  from  Mary  W.  Grant.  De- 
fendant claimed  that  the  title  was  not  marketable,  owing  to  the  alleged 
fact  that  Mrs.  Grant  had  not  signed  her  will  at  the  end  thereof.  The 
will  in  question  is  as  follows : 

"169  S.  Carolina  Avenue.    Atlantic  City,  N.  J. 

"January  26,  1894. 

"I,  Mary  W.  Grant,  being  in  health  and  of  sound  mind,  do  make  this 
my  last  will  and  testament,  revoking  all  other  wills  by  me  made. 

"Item:  I  wish  all  my  funeral  expenses  and  just  debts  to  be  paid. 

"Item :  I  will  and  bequeath  to  the  Spring  Garden  Unitarian  Society, 
Broad  and  Brandywine  Streets,  Phila.,  the  sum  of  Five  Hundred  Dol- 
lars ($500)  to  be  paid  in  cash,  without  any  deductions,  as  soon  as  pos- 
sible after  my  death. 

"Item :  The  rest  and  residue  of  my  estate,  real  and  personal,  I  will 
and  bequeath  to  my  nephew,  Albert  Saunders,  unconditionally,  in  case 
of  his  death  before  inheriting  my  estate,  I  will  it  to  his  child,  or  chil- 
dren, the  above  mentioned  real  and  personal  estate ;  if  there  should  be 
no  child  or  children  of  his,  I  wish  all  my  convertible  property  turned 
into  money  and  given  to  the  above  mentioned  Unitarian  Society  to  be 
used  according  to  the  best  judgment  of  said  Society.  My  clothing  1 
wish  given  to  the  deserving  poor,  according  to  the  judgment  of  my- 
executor. 


SIGNING   BY  TESTATOB  111 

"To  this  my  last  will  and  testament  I  set  my  hand  and  seal  this  26th 
day  of  January,  1894.  Mary  W.  Grant.  [Seal.] 

"169  S.  Carolina  Ave. 

"Atlantic  City,  N.  J. 

"As  executors  of  this  my  last  will  and  testament  I  appoint  J.  Pem- 
berton  Ellis  and  Albert  Saunders. 

"In  witness  of  this  will  and  testament  of  Mary  W.  Grant  we,  the 
undersigned,  do  sign  our  names.  Howard  Humpton, 

"Marion  E.  Humpton." 

Argued  before  MITCHELL,  DEAN,  BROWN,  MESTREZAT,  and  POT- 
TER, JJ. 

PER  CURIAM.  The  court  below  found  on  competent  evidence  that 
the  words  appointing  executors  were  not  on  the  will  at  the  time  it  was 
executed  by  the  testatrix,  but  were  added  at  a  later  date.  Disregard- 
ing these  words,  therefore,  we  have  a  will  in  due  form,  signed  by  the 
testatrix  at  the  end  thereof,  as  required  by  the  act  of  1833  (P.  L.  249). 
Such  a  will  can  be  revoked,  under  the  express  words  of  the  statute, 
only  by  "some  other  will  or  codicil  in  writing,  or  other  writing,  declar- 
ing the  same  executed,  and  proved  in  the  same  manner,  *  *  *  or 
by  burning,  cancelling,"  etc.  Act  1833  (P.  L.  250,  §  13).  The  object 
of  the  statute  was  to  secure  evidence  in  the  instrument  itself  of  the  com- 
pleted intent  of  the  testator,  and  that,  having  been  fully  shown  by  the 
signature  at  the  end,  is  not  to  be  revoked  except  by  equal  evidence  of 
a  subsequent  completed  change  of  intention.  The  evils  under  the  for- 
mer system  of  accepting  a  signature  in  any  part  of  the  instrument,  or 
even  unsigned  memoranda,  as  a  valid  will,  are  forcibly  stated  by  Strong, 
J.,  in  Heise  v.  Heise,  31  Pa.  246.  The  words  added  in  the  present  case 
do  not  indicate  any  intention  to  revoke  the  will,  but  rather  to  make  a 
codicil  supplementary  to  its  provisions.  But  the  intent,  whatever  it 
was,  being  incomplete  for  want  of  the  testatrix's  signature,  is  not  opera- 
tive for  either  purpose. 

Decree  affirmed. 


112  EXECUTION   OF  WILLS 


II.  Acknowledging  Signature  Before  Witnesses' 


NUNN  v.  EHLERT. 

(Supreme  Judicial  Court  of  Massachusetts,  1914.    218  Mass.  471,  106  N.  E. 
163,  L.  B,  A.  1915B,  87.) 

LORING,  J.8  This  appeal  from  a  decree  of  the  probate  court  comes 
before  us  upon  a  report  by  a  single  justice  of  this  court  which  sets 
forth  all  the  evidence  introduced  before  him.  The  single  justice  found 
that  the  testimony  of  each  subscribing  witness  was  "entirely  credible 
and  not  open  to  doubt,"  and  made  a  finding  that  the  instrument  was 
properly  executed  and  that  it  ought  to  be  admitted  to  probate  as  the 
will  of  Thomas  Nunn.  By  the  terms  of  the  report,  if  the  finding  was 
wrong  the  decree  of  the  probate  court  (disallowing  the  will)  is  to  be 
affirmed.  But  if  his  finding  is  sustained  that  decree  is  to  be  reversed 
and  a  decree  entered  admitting  the  instrument  to  probate. 

A  fac  simile  of  the  will  is  made  part  of  the  report.  The  will  was 
written  on  ordinary  foolscap  paper ;  that  is  to  say,  on  paper  folded  at 
the  top  and  with  lines  ruled  upon  it.  The  whole  paper  is  in  the  hand- 
writing of  the  deceased.  A  copy  of  the  ending  of  it  is  set  forth  in  the 
note.9  The  in  testimonium  clause  begins  at  the  foot  of  the  first  page 
and  ends  on  the  second  line  of  the  second  page.  The  attestation  clause 
begins  on  the  next  line  and  fills  five  lines  and  a  part  of  the  sixth  line. 
On  the  next  line  below  and  on  the  right  hand  side  of  that  line  occur 
the  words  "[Signed]  Thomas  Nunn."  On  the  three  lines  next  below 
that  line  and  on  the  left-hand  side  of  those  lines  are  the  names :  "Mrs. 
Mary  E.  Marshall.  John  Marshall.  Thomas  G.  Andrews."  On  the 
same  line  with  "Thomas  G.  Andrews"  and  on  the  right  hand  side  of 
that  line  are  the  words  "Thomas  Nunn." 

According  to  Mrs.  Marshall's  testimony  it  appeared  that  a  few  days 
before  she  and  her  husband  signed  the  instrument  here  in  question  the 
deceased  had  asked  her  if  she  and  her  husband  would  sign  his  will ; 
that  later  on  he  came  into  their  kitchen  and  took  the  will  out  of  his 
pocket;  that  "it  was  folded  up";  that  as  he  turned  it  over  she  saw 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  67. 
«  Part  only  of  the  opinion  is  given. 

8  In  testimony  whereof  I  hereunto  set  my  hand  and  in  the  presence  of 
three  witnesses  declare  this  to  be  my  last  will  and  testament,  this  first  day 
of  March,  A.  D.  1908.  Thomas  Xunn  of  Maiden  in  the  said  commonwealth. 
On  this  first  day  of  March,  1908,  Thomas  Nunn  of  Maiden  in  said  common- 
wealth, sign  the  foregoing  instrument  in  our  presence,  declaring  it  to  be  his 
last  will,  and  as  witnesses  thereof  we  three  at  his  request  and  in  his  presence 
hereto  subscribe  our  names.  [Signed]  Thomas  Nunn. 

Mrs.  Mary  E.  Marshall. 
John   Marshall. 
Thomas  G.  Andrews.  Thomas  Nunn. 


ACKNOWLEDGING   SIGNATURE    BEFORE   WITNESSES  113 

handwriting  on  it  and  recognized  the  writing  as  the  writing  of  the  de- 
ceased, but  could  not  "recognize  any  word" ;  that  they  were  sitting  on 
opposite  sides  of  a  table,  and  the  deceased  "reached"  the  folded  paper 
across  to  her  and  she  signed ;  that  he  held  on  to  the  paper  while  she 
signed;  that  it  was  folded  "just  so  I  could  sign  comfortably,"  and  so 
that  she  saw  nothing  above  where  she  put  her  name.  She  saw  no  sig- 
nature below  the  edge  made  by  the  folding  of  the  paper.  She  further 
testified  that  she  then  got  up  out  of  the  chair  in  which  she  sat  while 
signing  her  name;  that  her  husband  sat  down  and  signed  his  name, 
and  that  the  deceased  held  on  to  the  paper  folded  as  above  described 
until  both  had  signed.  He  then  blotted  the  signatures,  put  the  paper  in 
his  pocket  and  went  away.  She  further  testified  that  when  she  caught 
sight  of  the  writing  while  the  paper  was  being  turned  over  she  did  not 
distinguish  any  words  or  see  any  signature.  This  testimony  was  cor- 
roborated by  that  of  her  husband.  He  was  explicit  in  his  testimony 
that  no  change  was  made  in  the  arrangement  of  the  paper  while  his 
wife  and  he  signed,  and  that  the  deceased  did  not  point  to  any  signature 
in  the  will.  In  his  testimony  he  said,  "I  don't  remember  seeing  any 
signature."  It  should  be  added  that  after  his  death  the  instrument  now 
presented  as  the  will  of  the  deceased  was  found  in  his  box  in  a  safety 
deposit  vault. 

This  case,  therefore,  presents  the  question  whether  a  will  is  duly  at- 
tested when  the  signature  o.f  the  deceased  is  hidden  from  the  witnesses 
when  they  attest  and  subscribe  the  will. 

Our  statute  of  wills  (in  substance  a  re-enactment  of  the  statute  of 
frauds  [St.  29,  Car.  II,  c.  3,  §  5])  is  in  these  words:  "Every  person  of 
full  age  and  sound  mind  may  by  his  last  will  in  writing,  signed  by  him 
or  by  a  person  in  his  presence  and  by  his  express  direction,  and  attested 
and  subscribed  in  his  presence  by  three  or  more  competent  witnesses, 
dispose  of  his  property,  real  and  personal" — with  some  additions  not 
necessary  to  be  stated.  R.  L.  c.  135,  §  1.  *  *  * 

Taken  literally,  R.  L.  c.  135,  §  1,  requires  that  the  instrument  in 
writing  shall  be  "signed"  by  the  deceased  (or  by  a  person  in  his  presence 
and  by  his  express  direction),  in  the  presence  of  the  witnesses.  But  as 
matter  of  construction  it  was  early  established  that  an  acknowledgment 
by  the  deceased  in  the  presence  of  the  witnesses  of  a  previous  signature 
was  equivalent  to  signing  the  instrument  in  their  presence.  Chief  Jus- 
tice Shaw,  in  his  charge  to  the  jury  in  Hall  v.  Hall,  17  Pick.  373,  375 
(and  quoted  in  full  on  this  point  later  on  in  this  opinion),  made  a  state- 
ment in  substance  to  that  effect.  In  Dewey  v.  Dewey,  1  Mete.  349,  352, 
35  Am.  Dec.  367,  Mr.  Justice  Dewey  said:  "The  term  'attested/  as 
used  in  the  statute,  does  not  import  that  it  is  requisite  that  the  witnesses 
should  see  the  very  act  of  signing  by  the  testator.  The  acknowledg- 
ment by  the  testator,  that  the  name  signed  to  the  instrument  is  his,  ac- 
companied with  a  request  that  the  person  should  attest  as  a  witness,  is 
clearly  sufficient." 

DTJNM.CAS.WIIXS — 8 


114  EXECUTION    OF  WILLS 

Gray,  J.,  in  Chase  v.  Kittredge,  ubi  supra  [11  Allen,  49,  87  Am.  Dec. 
687],  said:  "The  statute  requires  that  the  will  shall  'be  in  writing  and 
signed  by  the  testator,'  and  shall  be  'attested  and  subscribed  in  the  pres- 
ence of  the  testator,  by  three  or  more  competent  witnesses.'  He  is  not 
required  to  write  his  signature  in  their  presence,  but  it  is  his  will  which 
they  are  to  attest  and  subscribe.  It  must  be  his  will  in  writing,  though 
he  need  not  declare  it  to  be  such.  It  must  therefore  be  signed  by  him 
before  it  can  be  attested  by  the  witnesses.  He  must  either  sign  in  their 
presence,  or  acknowledge  his  signature  to  them,  before  they  can  at- 
test it." 

And  the  law  is  settled  to  the  same  effect  in  other  jurisdictions.  A 
collection  of  cases  may  be  found  in  a  note  in  38  L.  R.  A.  (N.  S.)  164. 

It  may  be  taken  to  be  settled,  therefore,  first,  that  the  attestation  re- 
quired by  R.  L.  c.  135,  §.  1,  consists  in  the  witnesses  seeing  that  those 
things  exist  and  are  done  which  the  statute  requires  must  exist  or  be 
done  to  make  the  written  instrument  in  law  the  will  of  the  deceased ; 
second,  that  although  the  act  required  by  R.  L.  c.  135,  §  1,  is  that  the 
will  shall  be  "signed"  by  the  deceased,  yet  as  matter  of  construction 
an  acknowledgment  by  the  deceased  of  a  previous  signature,  made  in 
the  presence  of  the  attesting  witnesses,  is  equivalent  to  signing  in  their 
presence. 

With  these  two  propositions  established  we  come  to  the  question  pre- 
sented in  the  case  at  bar,  namely :  Is  there  an  acknowledgment  by  the 
deceased  of  a  previous  signature  where  the  signature  at  the  time  is  hid- 
den from  the  witnesses?  Chief  Justice  Shaw  put  that  (the  case  of  a 
hidden  signature)  as  an  example  of  an  instance  where  without  question 
there  was  not  an  acknowledgment  by  the  deceased  of  his  signature.  In 
his  charge  to  the  jury,  set  forth  in  Hall  v.  Hall,  17  Pick.  373,  375,  al- 
ready referred  to,  he  said :  "That  to  maintain  the  issue  on  the  part  of 
the  executor,  and  to  establish  the  will,  it  was  necessary  to  prove  that 
the  testatrix  signed  the  will  in  presence  of  the  witnesses,  or  that  she 
acknowledged  the  signature  as  hers  in  their  presence;  and  that  they 
severally  signed  it  as  witnesses  in  her  presence ;  and  that  such  acknowl- 
edgment was  a  sufficient  compliance  with  the  statute.  But  in  the  latter 
case  such  acknowledgment  may  be  shown,  either  by  proof  of  an  ex- 
press acknowledgment  and  declaration  that  the  signature  to  the  will  is 
hers,  or  by  such  facts  as  will  satisfy  the  jury,  that  she  intended  to  make 
such  declaration  or  recognition  of  her  signature.  If  a  mere  reference 
is  made  to  a  paper,  especially  if  produced  by  another  person,  and  not 
held  in  her  own  custody,  or  if  it  is  folded  up,  and  there  is  no  pointing 
to  or  referring  to  the  signature,  if  she  publishes,  declares  and  acknowl- 
edges such  document  to  be  her  will,  this  is  not  such  an  acknowledgment 
of  the  signature  as  will  supersede  the  necessity  of  an  actual  signature 
in  the  presence  of  the  witnesses,  and  will  not  warrant  the  jury  in  find- 
ing that  it  was  duly  signed  in  the  presence  of  the  witnesses." 

And  the  law  is  settled  in  accordance  with  this  view  in  England  (Hud- 
son v.  Parker,  1  Rob.  14;  Blake  v.  Blake,  7  P.  D.  102),  in  New  York 


PUBLICATION  115 

(In  re  Will  of  Mackay,  110  N.  Y.  611,  18  N.  E.  433,  1  L.  R.  A.  491,  6 
Am.  St.  Rep.  409;  In  re  Laudy,  148  N.  Y.  403,  42  N.  E.  1061),  in 
Minnesota  (Tobin  v.  Haack,  79  Minn.  101,  81  N.  W.  758),  and  in  Ore- 
gon (Richardson  v.  Orth,  40  Or.  252,  66  Pac.  925,  69  Pac.  455).  An 
opposite  conclusion  was  reached  in  Re  Dougherty's  Estate,  168  Mich. 
281,  134  N.  W.  24,  38  L.  R.  A.  (N.  S.)  161,  Ann.  Cas.  1913B,  1300. 

Apart  from  authority  it  is  manifest  that  a  person  does  not  acknowl- 
edge a  signature  to  be  his  where  no  signature  can  be  seen.  All  that  he 
does  in  such  a  case  is  to  acknowledge  the  fact  that  he  has  signed.  While 
an  acknowledgment  of  a  signature  then  exhibited  to  the  witnesses  is 
equivalent  to  signing  in  their  presence,  an  acknowledgment  to  the  wit- 
nesses of  the  fact  that  a  signature  has  been  made  is  not  the  equivalent 
of  signing  in  their  presence.  It  follows  that  where  the  signature  is 
hidden  there  is  not  the  equivalent  of  the  statutory  requirement  that  the 
writing  shall  be  "signed"  in  the  presence  of  the  attesting  witnesses. 

It  is  true  that  Hudson  v.  Parker,  1  Rob.  14,  and  Blake  v.  Blake,  7  P. 
D.  102,  were  decided  under  St.  1  Viet.  c.  26,  §  9,  which  in  terms  re- 
quires that  the  signature  shall  be  "made  or  acknowledged  by  the  testa- 
tor in  the  presence  of  two  or  more  witnesses."  But  it  is  of  no  conse- 
quence whether  the  conclusion  (that  the  signature  must  be  made  by  the 
testator  in  the  presence  of  the  witnesses  or  acknowledged  by  him  in 
their  presence)  is  reached  as  matter  of  construction  (as  in  R.  L.  c.  135, 
§  1)  or  as  matter  of  express  enactment  (as  it  is  under  1  Viet.  c.  26,  §  9). 
The  conclusion,  however  reached,  being  the  same,  cases  in  both  juris- 
dictions are  equally  in  point.  *  *  *  Affirmed. 


III.  Publication10 


In  re  CLAFLIN'S  WILL. 
(Supreme  Court  of  Vermont,  1902.    75  Vt.  19,  52  Atl.  1053,  58  L.  R  A.  261.) 

RowELL,  C.  J.11  *  *  *  A  more  important  question  arises  on 
the  charge  where  it  says  that  the  attesting  witnesses  must  have  been 
informed  and  have  known  that  it  was  Claflin's  will  that  they  were  then 
and  there  asked  to  witness  and  attest ;  that,  if  he  concealed  from  them 
the  fact  that  it  was  his  will,  they  did  not  attest  his  will ;  that  it  was 
necessary  when  they  signed  the  will  as  witnesses  that  they  should  know 
they  were  signing  as  witnesses  to  his  will ;  that  they  must  have  been 
informed  of  that  in  some  way,  and  have  understood  it  when  they  signed. 

It  appears  that  the  will,  including  the  attestation  clause,  was  written 
and  signed  by  the  testator;  that  he  superintended  its  execution,  and 

10  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  68. 

11  Part  only  of  the  opinion  is  given. 


116  EXECUTION    OF  WILLS 

that  the  attesting  witnesses  subscribed  it  at  his  request  and  in  his  pres- 
ence ;  but  whether  in  the  presence  of  one  another  was  the  important 
question. 

Under  statutes  like  ours,  which  provide  that  wills  must  be  "attested 
and  subscribed  by  three  or  more  credible  witnesses  in  the  presence  of 
the  testator  and  of  each  other,"  it  is  very  generally  held  in  this  country 
that  the  witnesses  need  not  know  that  the  instrument  they  are  attesting 
is  a  will,  because  such  statutes  are  construed  not  to  require  it ;  and  it 
is  a  question  of  construction,  and  nothing  more. 

The  English  statute  of  frauds  (29  Car.  II,  c.  3,  §  5),  before  its  modi- 
fication by  1  Viet.  c.  26,  §  9,  required  wills  of  lands  and  tenants  to  be 
"attested  and  subscribed"  in  the  presence  of  the  testator  by  three  or 
four  credible  witnesses ;  and  it  was  always  held  in  England  under  that 
statute  that  the  witnesses  need  not  know  that  the  instrument  was  a 
will. 

In  White  v.  Trustees  of  the  British  Museum,  6  Bing.  310,  only  one 
of  the  witnesses  knew  the  nature  of  the  instrument ;  and  it  was  argued 
that,  if  such  a  subscription  of  their  names  satisfied  the  statute,  the  word 
"attested"  would  have  no  force  whatever,  and  might  as  well  have  been 
omitted.  But  the  court  said  the  question  was  whether  there  was  an 
acknowledgment  in  fact  by  the  testator  to  the  subscribing  witnesses, 
though  there  was  none  in  words,  that  the  instrument  was  his  will ;  for 
if,  it  said,  by  what  the  testator  did  he  must,  in  common  understanding 
and  reasonable  construction,  be  taken  to  have  acknowledged  the  instru- 
ment to  be  his  will,  the  attestation  thereof  must  be  considered  as  com- 
plete, within  the  principle  and  authority  of  Ellis  v.  Smith,  1  Ves.  Jr. 
11,  decided  in  1754.  And  it  appearing  that  the  testator  knew  the  in- 
strument to  be  his  will,  as  it  was  written  and  signed  by  him ;  that  he 
produced  it  to  the  three  persons,  and  asked  them  to  sign  it,  intending 
they  should  sign  it  as  witnesses;  that  they  subscribed  their  names 
thereto  in  his  presence,  and  returned  the  same  identical  paper  to  him, — 
it  was  held  that  he  acknowledged  in  fact  to  the  witnesses,  though  not  in 
words,  that  the  instrument  was  his  will,  and  that  its  execution  was 
good  under  the  statute ;  for,  the  court  said,  whatever  might  have  been 
the  doubt  as  to  the  true  construction  of  the  statute,  the  law  was  then 
fully  settled  that  the  testator  need  not  sign  his  name  in  the  presence  of 
the  witnesses,  but  that  a  bare  acknowledgment  of  his  handwriting  is  a 
sufficient  signature  to  make  their  attestation  and  subscription  good 
within  the  statute,  though  such  acknowledgment  conveys  no  intimation 
whatever,  nor  means  of  knowledge,  either  of  the  nature  of  the  instru- 
ment or  the  testator's  object  in  signing  it;  and  that  the  facts  of  that 
case  placed  the  testator  and  the  witnesses  in  the  same  relation  as  though 
an  oral  acknowledgment  of  his  signature  had  been  made. 

The  same  thing  is  held  in  Wright  v.  Wright,  7  Bing.  457.  In  Trim- 
mer v.  Jackson,  4  Burn,  Ecc.  Law  (3d  Ed.)  102,  a  will  was  established 
where  the  testator  purposely  misled  the  witnesses  into  supposing  that 
it  was  a  deed. 


PUBLICATION  117 

In  Massachusetts  they  hold  as  they  do  in  England,  under  a  statute 
like  ours  in  this  respect.  Thus,  in  Osborn  v.  Cook,  11  Cush.  (Mass.) 
532,  59  Am.  Dec.  155,  the  testator  signed  the  instrument  in  the  presence 
of  two  of  the  witnesses,  and  pointed  out  his  signature  to  the  third  wit- 
ness, and  each  of  the  witnesses  signed  the  instrument  as  a  witness  in 
the  presence  of  the  testator  and  at  his  request ;  but  the  testator  did  not 
disclose  to  any  of  the  witnesses  that  it  was  his  will,  nor  did  any  of  them 
know  or  suspect  the  nature  of  the  instrument,  and  yet  it  was  held  well 
executed.  The  court  said  that  calling  on  the  witnesses  to  attest  his 
execution  of  an  instrument,  the  character  and  contents  of  which  he  well 
knew,  was,  in  effect,  a  declaration  that  the  instrument  he  had  signed, 
and  his  signature  to  which  he  desired  them  to  attest,  was  his  act,  though 
the  character  of  the  instrument  was  not  disclosed  to  them ;  that  it  was 
as  if  the  testator  had  said :  "This  instrument  is  my  act.  It  expresses 
my  wish  and  purpose,  and,  though  I  do  not  tell  you  what  it  is,  I  desire 
you  to  attest  that  it  is  my  act,  and  that  I  have  executed  and  recognized 
it  as  such  in  your  presence ;"  that  the  legislature  had  prescribed  certain 
solemnities  to  be  observed  in  the  execution  of  a  will  that  it  may  be  seen 
that  it  is  the  free,  conscious,  intelligent,  act  of  the  maker,  but  that  it 
had  not  prescribed  that  he  should  publish  to  the  world  nor  to  the  wit- 
nesses what  is  in  the  will,  nor  even  that  it  is  a  will. 

Connecticut  holds  the  same  way,  where  the  statute  requires  a  will  to 
be  in  writing,  subscribed  by  the  testator,  and  attested  by  three  witnesses, 
all  of  them  subscribing  in  his  presence  and  in  the  presence  of  each 
other.  Appeal  of  Canada,  47  Conn.  450.  It  is  there  said  that 'the 
primary  reason  for  requiring  the  presence  of  the  witness  is  that  he 
should  be  able  to  say  that  the  testator  put  his  name  upon  the  identical 
piece  of  paper  upon  which  he  put  his  own ;  that  the  witness  identifies 
the  paper  by  the  conjunction  of  the  two  signatures,  not  by  the  character 
of  its  contents.  Allen  v.  Griffin,  69  Wis.  529,  35  N.  W.  21,  is  to  the 
same  effect. 

In  Re  Hulse's  Will,  52  Iowa,  662,  3  N.  W.  734,  the  same  is  held. 
There  the  statute  requires  a  will  to  be  witnessed  by  two  competent 
witnesses.  The  court  said  that  to  witness  means  "to  see  the  execution 
of  an  instrument,  and  to  subscribe  it  for  the  purpose  of  establishing  its 
authenticity,"  and  referred  to  the  English  statute  of  frauds  as  contain- 
ing a  similar  provision,  and  said  it  had  been  construed  as  not  requiring 
publication  in  the  sense  of  acquainting  the  witnesses  with  the  nature 
of  the  instrument. 

In  Watson  v.  Pipes,  32  Miss.  451,  the  same  is  held  under  a  statute 
taken  from  29  Car.  II.  The  court  said  that  such  seemed  to  be  the  hold- 
ing in  all  the  states  in  which  the  provisions  of  the  English  statute  in 
regard  to  wills  have  been  adopted;  that  the  rule  is  based  upon  the 
plain  and  obvious  construction  of  the  statute,  which  it  did  not  hesitate 
to  adopt. 

The  Alabama  Code  requires  wills  to  be  "attested  by  at  least  two  wit- 
nesses, who  must  subscribe  their  names  thereto  in  the  presence  of  the 


118  EXECUTION    OF   WILLS 

testator."  The  predecessor  of  this  statute  was  borrowed  from  29  Car. 
II,  c.  3,  §  5.  In  Barnewall  v.  Murrell,  108  Ala.  366,  18  South.  831,  the 
court  said  that,  as  the  statute  did  not  require  the  testator  to  inform 
the  attesting  witnesses  that  the  instrument  was  his  will,  it  was  im- 
material to  the  due  execution  of  the  will  in  that  case  whether  the  tes- 
tatrix made  any  declaration  to  the  attesting  witnesses,  or  gave  them  any 
notice  or  information,  that  the  instrument  was  her  will. 

In  Schouler,  Wills  (3d  Ed.)  §  326,  it  is  said  to  be  the  long-established 
doctrine,  both  of  England  and  the  United  States,  that,  independently 
of  an  express  statute  requiring  publication,  a  will  may  be  duly  executed 
without  any  formal  announcement  by  the  testator  of  a  testamentary 
purpose,  and  without  anything  being  said  by  him  to  show  the  nature  of 
the  instrument  the  witnesses  are  called  upon  to  subscribe;  that  the 
maker's  signature  animo  testandi,  and  his  proper  acknowledgment, 
showing  that  he  has  put  his  name  bona  fide  upon  the  paper  that  he 
desires  witnessed,  when  he  has  not  signed  in  their  presence,  renders 
the  execution  valid  in  general,  without  any  other  or  more  formal  execu- 
tion; and  that,  the  signature  of  the  witnesses  being  duly  affixed,  the 
act  of  execution  becomes  complete. 

In  Missouri,  under  a  statute  that  is  almost  an  exact  transcript  of  29 
Car.  II,  c.  3,  §  5,  they  hold  that  there  must  be  some  declaration  by  the 
testator  that  the  paper  is  his  will ;  but  that  it  need  not  be  verbal, — that 
an  act  or  a  sign  is  enough ;  but  that  the  witnesses  must  know  it  is  the 
will  of  the  testator,  and  witness  it  at  his  request.  Odenwaelder  v. 
Schorr,  8  Mo.  App.  458.  In  support  of  this  construction  of  the  stat- 
ute, Mundy  v.  Mundy,  15  N.  J.  Eq.  290,  is  referred  to.  But  that  case 
was  decided  under  a  statute  that  expressly  required  that  the  instrument 
should  be  "declared  to  be"  the  last  will  and  testament  of  the  testator; 
so  no  authority  for  the  holding. 

The  contestants  rely  much  upon  Swift  v.  Wiley,  1  B.  Mon.  (Ky.) 
114,  where  it  is  said  that  to  attest  the  publication  of  a  paper  as  a  will, 
and  to  subscribe  thereto  the  names  of  the  witnesses,  are  very  different 
things,  and  required  for  different  ends ;  that  attestation  is  an  act  of  the 
mind,  subscription  an  act  of  the  hand ;  that  to  attest  a  will  is  to  know 
that  it  is  published  as  such,  but  to  subscribe  it  is  only  to  write  on  the 
paper  the  names  of  the  witnesses  for  the  sole  purpose  of  identifica- 
tion. But  this  case  is  of  little  worth,  for  Flood  v.  Pragoff,  79  Ky. 
607,  expressly  decides  that  it  is  not  necessary  that  the  witnesses  should 
know  the  nature  of  the  instrument,  and  says  that  the  question  never 
before  arose  in  that  state;  and  it  hardly  could  have  arisen  in  Swift 
v.  Wiley,  for  there  was  a  publication  there  by  the  testator,  at  which 
the  witnesses  were  present.  It  is  said  in  Flood  v.  Pragoff  that  the 
legislature  had  prescribed  such  formalities  for  the  execution  of  wills 
as  it  thought  proper,  and  that  the  court  ought  not  to  add  to  them  by 
construction,  especially  when  the  efficacy  of  the  constructive  require- 
ment depended  solely  upon  the  memory  of  the  subscribing  witnesses. 

Illinois  and  Wisconsin  repudiate  the  idea  that  there  is  any  difference 


PUBLICATION  119 

between  attesting  and  Subscribing  a  will.  Drury  v.  Connell,  177  111. 
43,  52  N.  E.  368;  Sloan  v.  Sloan,  184  111.  579,  56  N.  E.  952;  Skinner 
v.  Society,  92  Wis.  209,  65  N.  W.  1037.  Dr.  Lushington  said  in  Bry- 
an v.  White,  2  Rob.  Ecc.  315,  that  he  felt  no  difficulty  in  answering 
the  question,  what  is  the  meaning  of  "shall  attest"  ?  that  attest  means 
that  the  person  shall  be  present  and  see  what  passes,  and  shall,  when 
required,  bear  witness  to  the  facts.  Lord  Chancellor  Selborne  said 
in  Seal  v.  Claridge  (1881)  50  Law,  J.  316,  that:  "Surely  the  very 
words  'ad  testari'  imply  the  presence  of  a  witness  standing  by,  who  is 
not  a  party  to  the  deed  to  be  witnessed."  Other  English  cases  say 
that  to  attest  an  instrument  is  not  merely  to  subscribe  one's  name  to 
it  as  having  been  present  at  its  execution,  but  includes  also,  essentially, 
the  presence  in  fact  at  its  execution  of  some  disinterested  person 
capable  of  giving  evidence  of  what  took  place.  Roberts  v.  Phillips 
(1855)  4  El.  &  Bl.  450;  Ford  v.  Kettle  (1882)  9  Q.  B.  Div.  139.  Dr. 
Lushington  somewhere  illustrates  that  as  a  notary,  by  his  attestation 
of  protest,  bears  witness,  not  to  the  statements  in  the  protest,  but  to 
the  fact  of  making  those  statements,  so  the  witnesses  to  a  will  bear 
witness  to  all  the  statute  requires  attesting  witnesses  to  attest,  namely, 
that  the  signature  was  made  or  acknowledged  in  their  presence. 

Judge  Redfield,  both  in  his  work  and  his  cases  on  Wills,  strenuous- 
ly contends  that  the  witnesses  must  know  the  nature  of  the  instru- 
ment; otherwise,  he  asks,  what  becomes  of  all  that  is  said  about  the 
great  solemnity  the  law  attaches  to  the  formal  execution  of  wills,  and 
how  are  the  witnesses  charged  with  the  duty  of  seeing  that  the  tes- 
tator is  of  sound  mind  before  they  consent  to  attest  the  instrument, 
which,  it  is  sometimes  said,  commits  them  to  having  attested  that  fact 
as  well  as  the  formal  signature  of  the  testator? 

As  to  the  "solemnity,"  the  formal  execution  of  wills  being  mere 
matter  of  statutory  requirement,  whatever  has  been  said  about  it  dehors 
the  statute  goes  for  nothing.  As  to  the  witnesses  being  charged  with 
the  duty  of  seeing  that  the  testator  is  of  sound  mind,  the  statute  does 
not  thus  charge  them,  unless  by  the  word  "attested" ;  and,  if  that  word 
charges  that  duty,  it  must,  it  would  seem,  charge  the  further  duty  of 
seeing  that  he  is  of  full  age,  for  that  is  as  essential  under  our  stat- 
ute as  a  sound  mind.  But  the  word  "attested"  does  not  charge  the 
duty  claimed,  as  is  shown  by  Thornton's  Ex'rs  v.  Thornton's  Heirs 
[39  Vt.  122]  above  cited.  There  it  was  contended  that  the  weight  to 
be  given  to  the  testimony  of  an  attesting  witness  to  a  will  is  matter 
of  law,  and  that,  therefore,  the  trial  court  was  bound  to  charge,  as  re- 
quested, that  such  testimony  is  "entitled  to  much  consideration  on  the 
question  of  capacity."  But  this  court  said  that  the  law  gives  no 
weight  to  the  testimony  of  such  a  witness  beyond  what  it  would  be 
entitled  to  under  the  conditions  that  usually  govern  the  value  of  tes- 
timony; that  the  prominence  given  to  such  testimony  in  opinions 
where  both  law  and  fact  are  discussed,  arises  from  the  witness'  ac- 
knowledged opportunity  for  observation  at  the  precise  time  in  ques- 


120  EXECUTION    OF  WILLS 

tion,  and  from  the  probability  of  his  having  used  the  opportunity  on 
account  of  his  participation  in  the  transaction;  that  it  is  because  of 
his  opportunity,  not  because  he  wrote  his  name  on  the  instrument, 
that  his  testimony  is  usually  listened  to  with  attention;  but  that  the 
law  attaches  no  fictitious  official  weight  to  the  testimony,  so  as  to  pass 
it  for  more  than  it  is  worth,  but  that  its  value  is  to  be  determined  by 
the  rules  applicable  to  other  testimony.  *  *  * 

We  hold,  therefore,  that  our  statute  does  not  require  that  the  at- 
testing witnesses  to  a  will  shall  know  the  nature  of  the  instrument. 
*  *  *  Reversed  and  remanded. 


IV.  Attestation 
1.  COMPETENCY  OF  WITNESSES  ia 


SPARHAWK  v.  SPARHAWK. 
(Supreme  Judicial  Court  of  Massachusetts,  1865.     10  Allen,  155.) 

Appeal  from  a  decree  of  the  judge  of  probate,  disallowing  an  in- 
strument offered  for  probate  as  the  will  of  Catherine  S.  Cole. 

It  was  agreed  that  Mrs.  Cole,  at  the  times  of  the  execution  of  this 
instrument  and  of  her  death,  had  no  father,  mother,  husband  or  chil- 
dren living;  that  she  died  possessed  of  considerable  property;  that 
Edward  Sparhawk,  one  of  the  three  attesting  witnesses,  was  her 
brother  and  an  heir  at  law,  and  that  the  instrument  contained  no  de- 
vise or  bequest  to  him,  but  gave  nearly  all  the  property  to  his  son. 
The  question  whether  he  was  a  competent  attesting  witness  was  re- 
served by  Gray,  J.,  for  the  determination  of  the  whole  court. 

BIGELOW,  C.  J.  The  provisions  of  Gen.  St.  c.  131,  §§  13,  14,  abol- 
ishing the  disqualification  of  witnesses  on  the  ground  of  infamy  and 
interest,  and  permitting  parties  to  the  record  in  all  civil  actions  and 
proceedings  to  testify,  do  not  apply  to  attesting  witnesses  to  wills  or 
codicils.  By  section  15  these  are  specially  excepted  from  the  opera- 
tion of  the  two  preceding  sections.  We  must  therefore  have  recourse 
to  the  well-settled  rules  of  the  common  law,  as  they  existed  prior  to 
the  enactment  of  the  above-cited  provisions,  in  order  to  determine 
whether  a  witness  to  a  will  is  competent  as  a  subscribing  witness  at 
the  time  of  the  attestation  of  the  instrument  and  its  execution  by  the 
testator.  It  is  to  be  borne  in  mind  that  the  question  to  be  determined 
in  this  case  is  not  whether  the  witness  objected  to  at  the  trial  was  com- 
petent to  give  evidence  in  the  case,  but  whether  he  was  competent 

12  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  72. 


ATTESTATION  121 

according  to  the  rules  of  the  common  law  to  act  as  a  subscribing  wit- 
ness. If  he  was,  then  the  will  was  duly  attested ;  but  if  he  was  not, 
then  the  will  cannot  be  admitted  to  probate,  because  it  was  not  sub- 
scribed in  the  presence  of  the  testator  by  three  competent  witnesses. 

The  much-vexed  question  as  to  the  true  construction  of  the  words 
"credible  witnesses"  in  the  English  statute  of  wills  was  early  settled 
by  this  court,  in  Amory  v.  Fellowes,  5  Mass.  219,  229,  in  which  it  was 
held  that  the  word  "credible"  was  used  as  equivalent  to  "competent," 
and  that  a  witness  was  admissible  to  prove  the  execution  of  a  will 
"whom  the  law  will  trust  to  testify  to  a  jury."  This  construction  was 
confirmed  by  several  subsequent  decisions  (Sears  v.  Dillingham,  12 
Mass.  358,  361 ;  Hawes  v.  Humphrey,  9  Pick.  350,  356,  20  Am.  Dec. 
481 ;  Haven  v.  Hilliard,  23  Pick.  10,  17),  and  was  incorporated  into 
Rev.  St.  c.  62,  §  6,  by  changing  the  phrase  "credible  witnesses"  into 
"competent  witnesses"  (Rep.  of  Com.  on  Rev.  St.  c.  62,  §  4).  The 
same  phraseology  is  contained  in  Gen.  St.  c.  92,  §  6. 

There  can  be  no  doubt  that  these  words  have  a  "peculiar  and  ap- 
propriate meaning  in  the  law,"  and  that  in  interpreting  them  it  is 
our  duty  to  give  them  that  meaning.  This  is  the  rule  of  exposition 
prescribed  in  Rev.  St.  c.  2,  §  6,  and  Gen.  St.  c.  3,  §  7.  A  competent 
witness,  according  to  legal  intendment,  is  one  who  is  entitled  to  be 
examined  in  a  court  of  justice,  and  of  whose  credibility  the  court  and 
jury  are  by  the  well-settled  rules  of  law  permitted  to  judge.  He  must 
be  so  situated,  in  respect  to  the  issue  depending  between  the  parties 
to  a  cause  or  proceeding,  or  to  the  particular  fact  concerning  which  he 
is  called  to  testify,  and  must  have  such  sense  of  the  obligation  of  an 
oath,  as  to  come  within  the  class  of  persons  whom  the  common  law 
deems  it  safe  and  wise  to  admit  to  give  testimony  in  judicial  investi- 
gations. In  general,  if  a  witness  is  not  wanting  in  religious  belief, 
if  he  has  not  been  rendered  infamous  by  conviction  of  crime,  and  has 
no  pecuniary  interest  in  the  event  of  the  suit  in  which  he  is  called  to 
testify,  he  is  admissible  and  competent  as  a  witness. 

There  are  no  other  tests  by  which,  under  the  rules  of  the  common 
law,  a  court  can  determine  whether  a  witness  is  to  be  excluded  or  ad- 
mitted, and,  so  far  as  we  know,  no  other  have  ever  been  applied  in 
any  of  the  cases  which  have  arisen  under  the  statute  regulating  the 
attestation  of  wills.  Certainly,  in  all  of  those  which  have  heretofore 
been  decided  by  this  court,  the  struggle  has  been  whether  the  witness 
had  at  the  time  of  attestation  such  pecuniary  interest  in  the  event  of 
the  suit  as  to  be  then  disqualified  as  a  witness  to  testify  concerning 
the  signing  of  the  will  by  the  testator,  according  to  the  established  rule 
of  evidence  at  common  law,  as  recognized  and  acted  on  in  courts  of 
justice. 

Applying  this  rule  to  the  facts  agreed  in  the  present  case  concern- 
ing the  situation  and  relation  of  the  attesting  witness,  we  are  unable 
to  see  any  valid  ground  of  objection  to  his  competency.  It  is  conceded 


122  EXECUTION    OP   WILLS 

that  he  was  one  of  the  heirs  at  law  of  the  testatrix,  and,  if  she  had 
died  intestate,  he  would  have  been  entitled  to  one  fourth  part  of  her 
estate.  It  is  also  agreed  that  by  her  last  will  the  testatrix  devised  and 
bequeathed  the  larger  part  of  her  estate  to  the  son  of  the  attesting 
witness,  and  made  no  devise  or  bequest  whatever  to  the  latter.  It  is 
very  clear,  therefore,  that  the  pecuniary  interest  of  the  witness  would 
be  promoted  by  a  failure  to  prove  the  due  attestation  of  the  will,  and 
that  his  testimony  in  support  of  it  would  operate  directly  against  this 
interest. 

It  is  contended,  however,  'that  the  fact  that  he  was  the  heir  at  law 
of  the  testatrix,  and  in  the  event  of  intestacy  that  he  would  be  en- 
titled to  a  distributive  share  of  the  estate  of  his  sister,  gave  him  an 
interest  in  the  subject-matter.  In  a  certain  sense  this  is  true.  He 
had  an  interest  in  the  question  whether  his  sister  should  die  testate 
or  intestate,  because  on  this  contingency  depended  his  own  claim  to 
share  in  her  estate.  But  the  insuperable  difficulty  in  the  way  of  hold- 
ing this  fact  to  be  a  disqualification  of  him  as  a  witness  is  that  by  the 
rule  of  law  interest  of  itself,  without  regard  to  its  nature  or  bearing 
on  the  issue,  never  operated  to  exclude  a  witness  from  giving  evi- 
dence. It  is  only  when  the  pecuniary  interest  of  a  person  will  in  some 
way  and  to  some  appreciable  extent  be  aided  or  promoted  by  a  judg- 
ment or  decree  in  favor  of  the  party  calling  him,  that  he  is  excluded 
from  testifying,  according  to  the  rule  of  the  common  law.  So  plain 
is  this,  that  it  is  said  by  Professor  Greenleaf  in  1  Greenl.  Ev.  §  410, 
that  "it  is  hardly  necessary  to  observe,  that  when  a  witness  is  pro- 
duced to  testify  against  his  interest,  the  rule  that  interest  disqualifies 
does  not  apply,  and  the  witness  is  competent."  Nor  is  this  all.  Not 
only  does  such  an  interest  not  disqualify  a  witness,  but  it  is  always 
deemed  to  be  a  circumstance  legitimately  entitled  to  great  weight  in 
judging  of  the  credibility  of  a  witness,  that  he  is  called  to  testify  ad- 
versely to  his  own  interest. 

This  rule  of  the  common  law  which  excludes  a  witness  from  giving 
evidence  in  favor  of  his  own  interest  is  said  to  be  founded  on  the 
close  and  intimate  connection  which  experience  has  shown  to  exist 
between  the  situation  of  a  witness  and  the  truth  or  falsity  of  his  tes- 
timony. The  common  law  rejected  the  evidence  of  persons  called  to 
testify  in  support  of  their  interest,  not  because  persons  so  situated 
might  not  sometimes  state  the  truth,  but  because  a  long  acquaintance 
with  and  familiar  knowledge  of  proceedings  in  courts  had  shown  that 
men  were  subject  to  be  greatly  swayed  and  influenced  in  their  tes- 
timony by  having  a  private  pecuniary  interest  in  the  favorable  result 
of  a  cause  which  they  were  called  to  support  by  their  evidence ;  and 
that,  if  allowed  to  give  testimony  in  such  cases,  it  would  tend  to  the 
commission  of  perjury,  and  to  mislead  rather  than  to  guide  juries  in 
the  investigation  of  truth.  It  is  obvious  that  the  reason  on  which  the 
rule  is  founded  has  no  application  where  the  testimony  which  a  wit- 


ATTESTATION  123 

ness  is  called  to  give  will  operate  to  the  prejudice  of  his  rights  or 
interest,  or  in  no  way  tend  to  promote  them. 

Nor  can  we  see  any  greater  difficulty  in  applying  the  ordinary  rule 
of  exclusion  on  the  ground  of  interest  to  an  attesting  witness  to  a 
will  than  to  one  who  is  called  to  testify  in  the  trial  of  an  action  at  law. 
In  the  latter  case  the  test  of  competency  is  whether  the  witness  will 
gain  by  a  decision  of  the  case  in  favor  of  the  party  who  offers  him  as 
a  witness.  It  does  not  depend  on  the  nature  of  his  evidence  or  the 
facts  to  which  he  is  expected  to  be  a  witness.  The  question  is  not 
whether  he  shall  be  permitted  to  give  a  certain  kind  of  evidence,  or 
to  testify  to  particular  facts  and  not  to  others,  but  whether  he  can  be 
admitted  to  testify  at  all.  So  in  case  of  the  attestation  of  a  will.  The 
competency  of  the  witness  is  to  be  settled  by  his  situation  at  the  time 
of  attestation,  with  respect  to  the  subject  matter  and  the  contents  of 
the  will. 

The  question  is  not  whether  he  will  testify  in  support  of  or  ad- 
versely to  the  establishment  of  the  will,  but  whether  his  situation  and 
relation  to  the  testator  or  testatrix,  and  the  disposition  of  the  property 
by  the  will,  were  such,  when  the  will  was  made,  that  he  can  be  ad- 
mitted to  testify  at  all.  Nor  is  it  at  all  material  to  the  question  of  com- 
petency that  the  contents  of  the  will  were  unknown  to  the  witness 
at  the  time  of  attestation.  The  law  does  not  look  to  the  conscious- 
ness or  knowledge  of  a  party  to  ascertain  whether  he  is  competent  to 
testify.  It  is  the  fact  of  a  present  existing  interest  which  disqualifies. 
If  this  exists,  the  witness  is  incompetent ;  if  no  interest  is  shown,  then 
he  is  competent,  irrespective  of  his  knowledge  of  an  absence  of  inter- 
est in  the  subject  matter  in  controversy.  If,  by  the  terms  of  the  will, 
its  admission  to  probate  would  operate  favorably  to  his  interests,  he 
is  incompetent  to  attest  the  execution  of  the  instrument.  He  then  has 
a  direct  pecuniary  interest  in  the  proof  of  the  fact  to  which  he  is 
called  to  bear  witness. 

The  principles  of  law  regulating  the  competency  of  attesting  wit- 
nesses to  wills  are  correctly  stated  in  Haven  v.  Hilliard,  ubi  supra. 
It  is  true  that  in  giving  an  exposition  of  the  provisions  of  a  statute 
affecting  the  validity  of  the  attestation  in  that  case,  certain  illustrations 
were  used  by  the  court  which  seem  to  give  countenance  to  the  doctrine 
that  a  witness  to  the  execution  of  a  will  may  be  incompetent  even 
where  his  interest  was  adverse  to  its  establishment  and  validity.  But 
the  case  itself  shows  that  no  point  concerning  the  competency  of  wit- 
nesses so  situated  was  there  raised,  and  that  the  language  of  the  court, 
though  liable  to  misapprehension,  was  not  intended  as  a  decision  of 
that  question.  Certainly  so  far  as  it  seems  to  support  the  proposition 
that  an  heir  at  law,  who  is  disinherited  in  whole  or  in  part  by  a  will, 
is  incompetent  as  an  attesting  witness,  the  case  is  contrary  to  well 
settled  principles,  and  must  be  overruled. 

Case  to  stand  for  trial. 


124  EXECUTION    OF  WILLS 


In  re  HOLT'S  WILL. 

(Supreme  Court  of  Minnesota,  1893.    56  Minn,  33,  57  N.  W.  219,  22  L.  R.  A. 
481,  45  Am.   St.  Rep.  434.) 

To  the  petition  of  Georgiana  Needham  .for  probate  of  the  will  of 
Julia  C.  Holt,  deceased,  Lizzie  Borden  and  others  instituted  a  contest, 
and  from  an  adverse  judgment  contestants  appeal. 

VANDERBURGH,  J.  The  will  in  question  here  contains  a  legacy  to 
Georgiana  Needham,  estimated  by  the  testator  at  about  $400,  and  it 
was  attested  by  two  witnesses,  one  of  which  was  E.  Z.  Needham,  who 
is  and  was  at  the  time  of  such  attestation  the  husband  of  Georgiana. 
Mrs.  Needham  is  the  proponent  of  the  will,  and  in  the  probate  court 
objection  was  made  by  the  contestants,  appellants  here,  to  the  allow- 
ance and  probate  of  the  will  on  the  ground  that  the  husband  of  the 
proponent  E.  Z.  Needham  was  not  a  competent  witness  to  the  will. 
The  action  of  the  probate  court,  allowing  the  will,  having  been  af- 
firmed by  the  district  court,  the  case  is  brought  here  on  appeal  from 
the  judgment  of  the  last-named  court. 

1.  The  first  question  presented  involves  the  competency  of  the  at- 
testing witness  E.  Z.  Needham.  Undoubtedly  he  must  have  been  a  com- 
petent witness  at  the  time  of  the  execution  of  the  will.  This  is  the 
established  doctrine  of  the  common-law  authorities,  from  the  case  of 
Holdfast  v.  Dowsing,  2  Strange,  1253,  down  to  the  present  time,  (1 
Redf.  Wills,  253;  2  Greenl.  Ev.  par.  691;  Morrill  v.  Morrill,  53  Vt. 
78,  38  Am.  Rep.  659;)  and  it  is  clearly  recognized  in  our  statute, 
(Probate  Code,  c.  2,  §  19,)  which  requires  that  a  will  shall  be  attested 
and  subscribed  in  the  testator's  presence  by  two  or  more  competent 
witnesses.  But,  if  competent  at  the  time  of  the  execution  of  the  will, 
their  subsequent  incompetency,  from  whatever  cause  it  arises,  shall  not 
prevent  the  probate  and  allowance  of  the  will,  if  it  is  otherwise  satis- 
factorily proven. 

The  appellants,  however,  contend  that  the  attesting  witnesses  must 
be  such  as  would  be  competent  under  the  common-law  rule,  and  that 
they  are  impliedly  not  included  in  the  definition  of  "witness,"  (Gen.  St. 
c.  73,  §  6,)  because  their  competency  is  to  be  determined  as  of  the  time 
of  the  attestation,  and  not  as  of  the  time  when  they  may  be  called  to 
testify  on  the  probate  of  the  will.  But  this  construction  cannot  be  up- 
held. The  cases  from  Massachusetts  are  not  in  point,  because  there 
the  statutes  removing  the  objection  to  the  competency  of  witnesses  on 
the  ground  of  interest  and  of  the  relation  of  husband  and  wife  are 
expressly  declared  not  to  apply  to  attesting  witnesses  to  a  will.  Sullivan 
v.  Sullivan,  106  Mass.  478,  8  Am.  Rep.  356. 

The  question  of  the  competency  of  such  witnesses  in  this  state  is 
determined  by  the  statute.  Gen.  S't.  c.  73,  §§  6,  7,  9,  10.  An  attesting 
witness  is  competent,  if  he  be  one  who  would  at  the  same  time  be  com- 
petent to  testify  in  court  to  the  facts  which  he  attests;  and  so  the 


ATTESTATION  125 

courts  hold.  Thus  in  Jenkins  v.  Dawes,  115  Mass.  601,  an  attesting 
witness  is  declared  to  be  one  who  at  the  time  of  the  attestation  would 
be  competent  to  testify;  and  in  Morrill  v.  Morrill,  53  Vt.  78,  38  Am. 
Rep.  659,  "competency  to  testify"  must  exist  at  the  time  of  the  attesta- 
tion. 

The  attestation  contemplated  the  subsequent  testimony  to  the  facts 
attested  when  the  will  should  be  proved.  The  incompetency  of  the 
husband  or  wife  to  testify  where  either  was  an  interested  party  at  the 
common  law  arose  out  of  the  unity  of  interest  and  of  personal  relations. 
This  unity  of  interest  may  be  removed,  and  yet,  owing  to  the  unity  and 
confidential  nature  of  their  personal  relations,  the  common-law  rule  in 
respect  to  competency  remain,  on  grounds  of  public  policy.  Lucas  v. 
Brooks,  18  Wall.  453,  21  L.  Ed.  779;  Giddings  v.  Turgeon,  58  Vt.  110, 
4Atl.  711. 

It  is  conceded  that  the  unity  of  interest,  so  far  as  relates  to  property, 
has  been  done  away  with  by  statute,  (Wilson  v.  Wilson,  43  Minn.  400, 
45  N.  W.  710,)  and  the  general  disqualification  to  testify  on  the  ground 
of  interest  is  removed  by  Gen.  St.  c.  73,  §  7 ;  but  it  is  denied  that  the 
statute  has  removed  the  general  incompetency  growing  out  of  the  mar- 
riage relation.  But  the  only  limitation  upon  the  competency  of  either 
is  found  in  section  10,  which  provides  that  neither  party  shall  be  ex- 
amined without  the  consent  of  the  other.  They  are  not  thereby  made 
incompetent  witnesses,  nor  are  they  to  be  classed  as  such,  though  their 
right  to  be  examined  is  contingent  upon  the  consent  of  that  one  for  or 
against  whom  the  witness  may  be  offered.  It  does  not  follow  that  a 
married  person  is  incompetent  to  attest  a  will  because  the  husband  or 
wife  of  such  person  is  a  beneficiary  under  the  will.  He  can  only  be- 
come incompetent  in  a  single  contingency,  and  that  is,  in  case  such  in- 
terested party  shall  become  a  contestant  on  the  subsequent  probate  of 
the  will.  If  the  latter  be  not  a  contesting  party,  he  is  in  no  position  to 
raise  the  objection,  and  he  may  not  choose  to  do  it  if  he  is;  and  if  he 
be  one  of  the  proponents,  he  thereby. consents  to  the  testimony  of  the 
attesting  witnesses.  The  contingency  which  would  make  him  incom- 
petent may  never  arise,  and  if  it  does,  it  must  be  deemed  to  arise  sub- 
sequent to  the  act  of  attestation. 

In  the  case  at  bar,  then,  what  evidence  is  there  that  the  witness  is  in- 
competent? The  wife  is  proponent,  and  offers  to  examine  her  hus- 
band as  a  witness.  No  question,  therefore,  in  respect  to  his  competency 
is  raised.  Incompetency  in  a  witness  is  not  presumed,  and  the  question 
is  to  be  determined  when  the  offer  to  examine  the  witness  is  made,  and 
then  the  facts  are  to  be  ascertained  by  the  court.  The  witness  is  not 
shown  to  be  incompetent  in  this  case,  and  his  evidence  on  the  probate 
of  the  will  was  properly  received.  In  Tillotson  v.  Prichard,  60  Vt.  107, 
14  Atl.  302,  6  Am.  St.  Rep.  95,  it  is  held  that  the  wife  of  the  grantor  in 
a  Minnesota  deed  was  a  competent  attesting  witness  thereto,  under  the 
provisions  of  the  statute  we  have  been  considering,  and  the  court  say 
"that  she  was  a  competent  witness,  and  might  be  examined  with  the 


126  EXECUTION    OF  WILLS 

consent  of  her  husband,"  and  also  held,  as  we  do,  that  the  plaintiff,  by 
offering  the  deed  in  evidence,  consented  to  her  being  a  witness. 

2.  The  appellant  also  contends  that  if  the  husband  be  a  competent 
witness,  then  the  legacy  to  his  wife  should  be  held  void  under  the  stat- 
ute which  annuls  beneficial  devisees,  etc.,  to  a  subscribing  witness  on 
account  of  the  marital  relation.  But  there  is  nothing  in  this  point.  The 
husband  has  no  direct  or  certain  interest  in  the  legacy  to  his  wife.  It 
is  absolutely  hers  in  her  own  right,  and  free  from  his  control.  Gen.  St. 
c.  69 ;  Wilson  v.  Wilson,  supra.  The  only  devises  or  legacies  which  the 
statute  annuls  are  those  made  to  subscribing  witnesses,  which  clearly 
does  not  apply  to  the  husband  or  wife  of  the  legatee. 

In  England,  where  husband  and  wife  are  competent  witnesses,  (Tayl. 
Ev.  pp.  1145,  1147,)  the  statute  has  gone  further,  (1  Viet.  c.  26,  §  15,) 
and  also  avoids  gifts,  legacies,  and  devises  to  the  husband  or  wife  of 
an  attesting  witness.  It  could  not  be  done  without  the  statute.  This 
legislation  assumes  both  the  competency  of  the  witnesses  and  that  they 
had  no  interest  in  the  legacies  which  would  have  made  the  same  void 
without  the  aid  of  legislation  to  that  effect. 

The  construction  we  have  adopted  is  in  conformity  with  the  spirit  of 
modern  legislation  on  the  general  subject  of  the  rights  of  husband  and 
wife,  and  the  practical  results  will  no  doubt  be  no  more  serious  than  in 
the  case  of  parents  or  children,  who  may  unquestionably  attest  deeds 
and  wills  for  each  other.  1  Alb.  Law  J.  246.  It  is  a  matter  largely  for 
the  judgment  of  the  legislature.  Judgment  affirmed. 


2.  SIGNING  BY  WITNESSES 
(A)  Sufficiency  of  Signature  18 

In  re  POPE'S  WILL. 

(Supreme  Court  of  North  Carolina,  1905.     139  N.   C.   484,  52  S.   E.  235,   1 
L.  K.  A.  [N.  S.]  1193,  111  Am.  St.  Rep.  813,  4  Ann.  Cas.  635.) 

Application  for  probate  of  the  will  of  Elijah  Pope,  deceased.  From 
a  decree  denying  probate,  Charles  Pope  appeals. 

Issue  devisavit  vel  non  on  a  paper  writing  propounded  as  the  will  of 
Elijah  Pope,  deceased,  transferred  from  the  clerk,  and  heard  before 
the  judge  and  a  jury  in  the  superior  court.  There  was  testimony  to  the 
effect  that  there  were  present  at  the  execution  of  the  paper  the  alleged 
testator,  D.  J.  Fulbright,  a  justice  of  the  peace,  Martin  Miller,  Candace 
Pope,  and  Charlie  Pope.  D.  J.  Fulbright  prepared  the  paper,  and  same 

is  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  73,  74. 


ATTESTATION  127 

was  signed  by  Elijah  Pope  as  his  last  will  and  testament  in  the  presence 
of  two  witnesses.  Martin  Miller  signed  his  name  as  subscribing  wit- 
ness, and  then  wrote  the  name  of  the  other  witness,  Candace  Pope,  who 
held  the  pen  while  this  was  done,  and  who  had  been  requested  by  the 
testator  to  subscribe  as  the  other  witness. 

Martin  Miller,  one  of  the  subscribing  witnesses,  testified  to  the  ex- 
ecution of  the  paper  writing  by  Elijah  Pope,  and  that  he  signed  as 
subscribing  witness,  and  in  reference  to  Candace  Pope,  who  signed  as 
witness,  said :  "Candace  asked  me  to  write  her  name.  She  had  hold 
of  the  pen  all  the  time  I  was  writing  her  name.  She  and  the  old  man 
asked  me  to  write  her  name." 

Candace  Pope  testified:  "I  am  daughter  of  Elijah  Pope,  and  lived 
with  him.  I  was  there  the  latter  years  of  his  life.  Mr.  Fulbright  came 
over.  Father  sent  for  him.  Got  there  about  dusk.  Martin  Miller  was 
there.  Father  signed  the  paper.  I  signed  it.  Father  asked  me  to  sign 
it.  My  name  is  C.  L.  Pope.  I  had  hand  on  the  pen.  I  signed  it.  No- 
body held  my  hand.  When  I  signed  it  I  was  standing  at  Martin's  back. 
He  was  sitting  at  a  chair  at  a  table.  He  had  the  pen.  I  held  the  pen 
at  the  end.  In  this  way  my  name  was  put  to  the  will.  I  asked  him  to 
hold  the  pen.  My  daddy  was  sitting  there.  Mr.  Fulbright  was  there. 
Father  was  84  years  old  at  the  time.  He  seemed  like  he  always  did. 
He  died  about  10  months  after  that,  I  think;  am  not  certain.  He 
complained  of  heartburn ;  went  off  to  the  bottoms  and  died  there ;  died 
suddenly,  don't  know  what  was  the  matter  with  him.  His  mind  was 
good  as  usual."  It  was  also  in  evidence  that  Candace  Pope  could  write. 

After  the  witnesses  to  the  paper  writing  had  testified,  the  propound- 
ers  offered  the  same  as  the  will  of  Elijah  Pope.  The  caveators  ob- 
jected, for  that  the  subscribing  witness  C.  L.  Pope  stated  that  she  could 
write,  but  did  not  herself  subscribe  her  name,  but  authorized  the  other 
witness,  Miller,  to  write  her  name,  and  she  held  the  end  of  the  pen 
while  he  wrote  her  name,  and  that  therefore  she  did  not  subscribe  her 
name  agreeably  to  the  requirements  of  the  statute.  The  objection  was 
sustained.  The  propounder  excepted,  and  from  judgment  against  him 
appealed. 

HOKE,  J.  The  point  which  the  parties  desired  and  intended  to  pre- 
sent, and  which  the  record  does  present,  is  thus  stated  in  the  case  on 
appeal :  "The  only  question  is  as  to  the  attestation  of  the  will  by  one 
of  the  subscribing  witnesses,  C.  L.  Pope ;  her  name  appearing  thereon 
in  the  normal  handwriting  of  the  other  subscribing  witness,  M.  L.  Mil- 
ler, and  nothing  appearing  on  the  face  of  the  paper  to  show  that  Miller 
had  authority  to  sign  her  name,  or  that  the  subscription  is  not  in  her 
handwriting,  except  from  the  evidence  which  is  set  forth  in  the  case." 
On  that  question  the  court  is  of  opinion  that  there  was  error  in  the 
ruling  of  the  judge  below;  and  on  the  testimony  presented,  if  believed 
by  the  jury,  the  paper  writing  was  properly  proven  as  the  last  will  and 
testament  of  Elijah  Pope.  In  construing  the  statute  as  to  written  wills, 
with  witnesses,  it  is  accepted  law  that  the  witness  must  subscribe  his 


128  EXECUTION   OF  WILLS 

name  to  the  paper  writing  animo  testandi,  in  the  presence  of  the  testa- 
tor, and  after  the  testator  has  himself  signed  the  same.  Ragland  v. 
Huntingdon,  23  N.  C.  563;  In  re  Cox's  Will,  46  N.  C.  321 ;  Chase  v. 
Kittredge,  93  Mass.  (11  Allen)  49,  87  Am.  Dec.  687.  And  it  has  been 
long  established  that  the  witness  may  properly  subscribe  by  making  his 
mark.  Pridgen  v.  Pridgen,  35  N.  C.  259;  Devereux  v.  McMahon,  108 
N.  C.  134,  12  S.  E.  902,  12  L.  R.  A.  205.  Some  of  the  courts  have  also 
decided  that  the  witness  may  subscribe  by  causing  a  third  person  to 
write  the  name  of  the  witness  in  his  presence  and  that  of  the  testator, 
and  without  such  witness  taking  any  physical  part  in  the  act.  Jesse  v. 
Parker,  6  Grat.  (Va.)  57,  52  Am.  Dec.  102;  Smythe  v.  Irick,  46  S.  C. 
299,  24  S.  E.  69,  32  L.  R.  A.  77,  57  Am.  St.  Rep.  684.  And  the  courts 
of  New  Hampshire,  Kentucky,  Kansas,  and  some  recent  decisions  in 
New  York  are  to  the  same  effect.  There  is  strong  authority  to  the  con- 
trary. Riley  v.  Riley,  36  Ala.  496 ;  Simmons  v.  Leonard,  91  Tenn.  183, 
18  S.  W.  280,  30  Am.  St.  Rep.  875 ;  McFarland  v.  Bush,  94  Tenn.  538, 
29  S.  W.  899,  27  L.  R.  A.  662,  45  Am.  St.  Rep.  760;  Horton  v.  John- 
son, 18  Ga.  396. 

Our  own  court  does  not  seem  to  have  passed  on  this  question  directly, 
and  it  is  not  necessary  to  do  so  in  the  case  before  us ;  for  the  evidence 
is  to  the  effect  that  Candace  Pope  held  the  pen  during  the  entire  time 
her  name  was  being  written.  The  witness  took  part  in  the  physical  act 
of  writing  her  name  animo  testandi,  in  the  presence  of  the  testator,  at 
his  request,  and  thus  fulfills  every  requirement  for  an  effectual  sub- 
scribing witness  to  a  will.  Such  requirement  is  stated  by  an  approved 
writer  as  follows:  "A  person,  to  become  a  subscribing  witness  to  a 
will,  must  sign  his  name  or  make  his  mark,  or  do  some  physical  act, 
affixing  or  recognizing  his  name,  which  he  intended  as  a  subscription." 
Martindale  on  Conveyancing  (2d  Ed.)  p.  554.  And  in  Underhill  on 
Wills,  vol.  1,  p.  274,  it  is  said  that  not  only  a  mark  with  the  name  of 
the  witness  attached,  but  anything  that  the  witness  shall  write  with 
intent  that  it  shall  stand  for  his  name,  shall  be  a  valid  signing  by  him. 
It  has  also  been  held  that,  if  the  witness  puts  his  name  to  the  paper 
animo  testandi,  he  may  subscribe  by  affixing  his  initials,  and  his  hand 
may  be  even  guided  by  another.  If  the  witness  can  effectually  sub- 
scribe in  the  many  modes  suggested,  it  would  seem  that  he  could  do  so 
when  he  holds  the  pen  while  his  entire  name  and  full  signature  is  writ- 
ten. 

The  only  reason  suggested  against  the  validity  of  this  attestation  is 
the  fact  that  the  witness  was  able  to  write  herself,  and  it  is  contended 
that  this  kind  of  signature  is  only  sanctioned  when  the  witness  is  un- 
able to  write,  or,  at  most,  when  temporarily  disabled.  But  the  authori- 
ties do  not  support  this  position.  As  a  matter  of  fact,  in  most  cases 
where  the  witness  has  been  permitted  to  subscribe  in  this  way,  he  was 
unable  to  write ;  but  this  fact  was  not  regarded  as  essential  and  should 
not  be  controlling.  One  principal  purpose  in  requiring  the  attestation 


ATTESTATION  129 

of  wills  is  to  surround  the  testator  with  witnesses  who  are  charged  with 
the  present  duty  of  noting  his  condition  and  mental  capacity.  Another 
is  to  insure  the  identity  of  the  instrument  and  to  prevent  the  fraudu- 
lent substitution  of  another  document  at  the  time  of  its  execution. 
Taking  part  in  some  physical  act  in  the  presence  of  the  testator  by  which 
the  name  of  the  witness  is  affixed  to  the  instrument  animo  testandi  is 
the  essential  feature  of  the  requirement.  In  re  Cox's  Will,  supra.  It 
is  always  desirable  that  a  witness  who  can  write  his  name  should  be 
selected,  and  that  he  should  write  the  signature  in  his  own  hand ;  but 
this  is  a  matter  of  convenience  in  the  probate  of  the  paper,  more  par- 
ticularly in  case  of  the  death  of  the  witness,  and  does  not  bear  with 
special  force  on  the  act  of  execution — the  res  gestae.  Thus,  in  Harrison 
v.  Elvin,  43  Eng.  Com.  Law,  658,  where  it  was  urged  upon  the  court 
that  only  a  witness  who  could  write  should  be  allowed  as  a  subscribing 
witness,  because  otherwise,  the  signature  could  not  be  proved  after 
his  death,  Lord  Denman  rejected  the  suggestion  as  controlling,  saying 
that  this  was  only  an  inconvenience  and  likely  to  arise  in  any  kind  of  an 
attestation. 

It  is  not  of  the  first  importance,  therefore,  whether  the  witness  could 
or  could  not  write,  and  the  authorities  are  to  the  effect  that  to  become 
an  effectual  subscribing  witness  by  making  a  mark,  or  in  the  other  ways 
suggested,  it  is  not  necessary  to  show  as  a  prerequisite  that  the  witness 
was  unable  to  write.  In  Martindale  on  Conveyancing,  §  190,  it  is  said : 
"It  may  be  observed  that  it  is  not  necessary  that  a  party  should  sign  his 
name ;  but  his  mark  is  sufficient,  though  he  should  be  able  to  write." 
In  3  Washburn  on  Real  Property,  286,  we  find  it  stated  as  follows : 
"Affixing  his  mark  by  the  grantor  against  his  name,  though  written  by 
another,  is  a  signing,  though  it  do  not  appear  that  he  cannot  read  or 
write."  These  authorities  are  cited  with  approval  in  Devereux  v.  Mc- 
Mahon,  108  N.  C.  142,  144,  12  S.  E.  902,  12  L.  R.  A.  205.  In  1  Wil- 
liams on  Executors,  134,  it  is  said  that  the  decisions  on  the  construction 
of  the  statute  of  frauds  appear  to  make  it  clear  that  in  case  of  the  wit- 
ness, as  well  as  the  testator,  the  subscription  by  mark  is  sufficient,  not- 
withstanding the  witness  is  able  to  write.  In  Jesse  v.  Parker,  supra,  it 
is  not  stated  that  the  witness  could  not  write ;  and  in  Smythe  v.  Irick, 
supra,  it  expressly  appears  that  the  witness  could  write,  and  it  was  held 
that  this  fact  did  not  affect  the  principle.  It  will  be  noted  that  these 
two  last  cases  are  from  courts  which  maintain  the  position  that  a  sub- 
scription can  be  made  without  any  physical  or  manual  act  by  the  wit- 
ness at  all ;  but  they  are  apt  as  authorities  on  the  position  now  being 
maintained.  The  point  is  expressly  decided  against  the  position  of  the 
caveators  in  Baker  v.  Dening,  35  E.  C.  L.  335,  8  Adol.  &  Ellis,  94.  The 
witness  Candace  Pope  having  taken  part  in  the  physical  act  of  writing 
her  name  as  witness,  and  this  having  been  done  animo  testandi,  at  the 
request  of  the  testator,  and  in  his  presence,  the  court  is  of  opinion  that 
she  is  an  effectual  subscribing  witness  to  the  will,  and  that  this  result  is 
DUNM.  CAS.  WILLS — 9 


130  EXECUTION    OP  WILLS 

not  affected  by  the  fact  that  such  witness  was  at  the  time  able  to  write 
her  own  name. 

There  was  error  in  the  ruling  of  the  court,  and  a  new  trial  is  award- 
ed.   New  trial. 


(B)  When  Witnesses  Must  Sign 


14 


HORN'S  ESTATE  v.  BARTOW. 

(Supreme  Court  of  Michigan,  1910.    161  Mich.  20,  125  N.  W.  696,  26  L.  R.  A. 
[N.  S.]  1126,  20  Ann.  Cas.  1364.) 

McALVAY,  J.  Contestant  appealed  to  the  circuit  court  of  Wayne 
county  from  the  order  admitting  to  probate  the  last  will  and  testament 
of  deceased.  A  trial  was  had  in  the  circuit  court,  which  resulted  in 
a  verdict  directed  for  proponent.  From  a  judgment  entered  upon 
such  verdict,  contestant  has  removed  the  case  to  this  court  by  writ  of 
error  for  review. 

The  sole  question  presented  in  the  case  is  whether  there  was  a  due 
and  valid  execution  of  the  will  presented  for  probate.  The  testator 
died  October  12,  1906.  The  will  was  executed  April  4,  1904.  The  tes- 
tator and  the  two  witnesses  to  the  will  lived  in  the  township  of  Red- 
ford,  Wayne  county.  The  witness  John  W.  Hawthorne  kept  a  coun- 
try hotel.  The  other  witness,  Ansel  B.  Pierce,  was  a  farmer  and  a 
notary  public.  He  had  held  township  offices,  and  was  accustomed  to 
prepare  papers  for  people  in  that  community.  On  April  4,  1904,  Mr. 
Pierce,  with  Mr.  Horn,  the  testator,  came  to  the  hotel  of  Mr.  Haw- 
thorne, who  had  known  Mr.  Horn  for  more  than  20  years.  The  tes- 
tator was  a  farmer  and  very  bright.  His  health  appeared  to  be  excel- 
lent. While  at  his  hotel  on  that  occasion,  Mr.  Pierce  called  Hawthorne 
to  come  and  witness  a  paper.  He  went  into  the  sitting  room,  where 
Pierce  and  Horn  were,  and  Pierce  said  to  him  that  Mr.  Horn  had 
made  his  will,  and  wanted  him  to  sign  it  as  a  witness..  Mr.  Horn  told 
him  he  was  executing  his  will.  He  testifies :  "I  signed  first.  Mr. 
Pierce  showed  me  where  to  sign.  Then  Mr.  Horn  signed  next.  Then 
Mr.  Pierce  to  the  best  of  my  recollection.  *  *  *  I  signed  first, 
and  then  Mr.  Horn  made  his  mark,  and  then  Mr.  Pierce  signed."  The 
signature  of  Mr.  Horn  is  by  his  mark,  which  this  witness  saw  him 
make.  The  record  shows  that  these  parties  were  together  during  the 
whole  time,  and  the  signing,  attesting,  and  witnessing  of  this  will  was 
one  continuous  transaction.  The  other  witness  to  this  will,  Mr.  Pierce, 
died  before  the  testator. 

The  claimed  irregularity  in  this  execution  is  the  signing  of  Haw- 
thorne as  a  witness  before  the  testator  had  signed.  The  record  shows 

i«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  FA.)  §  74. 


ATTESTATION  131 

that  the  other  witness  signed  immediately  after  the  testator.  Section 
9266,  Comp.  Laws  1897,  contains  the  statutory  provisions  relative  to 
the  execution  of  wills.  The  material  portion  of  the  statute  reads: 
"No  will  made  within  this  state,  except  such  nuncupative  wills  as  are 
mentioned  in  the  following  section,  shall  be  effectual  to  pass  any  es- 
tate, whether  real  or  personal,  nor  to  charge  or  in  any  way  affect  the 
same  unless  it  be  in  writing  and  signed  by  the  testator  or  by  some  per- 
son in  his  presence  and  by  his  express  direction  and  attested  and  sub- 
scribed in  the  presence  of  the  testator  by  two  or  more  competent  wit- 
nesses." 

The  authorities  are  not  in  harmony  upon  the  question  here  present- 
ed. This  court  has  never  passed  upon  it.  In  the  case  of  Schermerr 
horn  v.  Merritt,  123  Mich.  310,  82  N.  W.  513,  83  N.  W.  405,  cited  as 
authority  by  contestant,  the  question  was  not  involved.  An  examina- 
tion of  the  original  record  and  briefs  discloses  quite  the  contrary. 
The  witnesses  to  the  claimed  will  signed  at  different  times.  The  tes- 
tatrix and  the  two  alleged  witnesses  never  met  together.  When  the 
first  witness  signed,  there  was  no  signature  to  the  paper.  There  was 
no  proof  that  her  name  was  written  by  her  in  the  body  of  the  instru- 
ment. When  the  second  witness  signed,  there  was  no  signature  to  the 
will  until  he  told  her  she  must  sign  it  at  the  bottom  before  he  signed. 
In  the  case  at  bar  no  irregularity  in  the  matter  of  the  execution  of 
the  will  is  claimed  except  the  order  in  which  the  instrument  was  sign- 
ed by  the  testator  and  one  witness.  We  find  abundant  authority  hold- 
ing that,  in  the  absence  of  express  statutory  provision,  in  the  execu- 
tion, attestation,  and  witnessing  of  wills  the  order  of  signature  is  im- 
material, where  such  acts  are  a  part  of  one  continuous  and  complete 
transaction.  That  there  is  a  line  of  authorities  holding  the  contrary 
doctrine  has  already  been  stated.  These  authorities  will  be  discussed 
later. 

Kentucky  was  among  the  first  of  the  United  States  to  hold  the  doc- 
trine that  the  order  of  signing,  attesting,  and  witnessing  a  will  was 
not  material.  The  statute  of  that  state  of  1797,  relative  to  the  execu- 
tion, attestation,  and  witnessing  wills,  contained  like  provisions  with 
the  same  statute  in  this  state.  In  Swift  v.  Wiley,  1  B.  Mon.  (Ky.)  114, 
the  court,  distinguishing  between  the  acts  of  attestation  and  subscrip- 
tion of  wills  by  witnesses,  said :  "Attestation  is  the  act  of  the  senses. 
Subscription  is  the  act  of  the  hand.  The  one  is  mental  the  other  is 
mechanical,  and  to  attest  a  will  is  to  know  that  it  has  been  published 
as  such,  *  *  *  but  to  subscribe  a  paper  published  as  a  will  is 
only  to  write  on  the  same  paper  the  names  of  the  witnesses  for  the 
sole  purpose  of  identification.  There  may  be  a  perfect  attestation  in 
fact  without  subscription.  But,  to  insure  identity  and  prevent  the 
fraudulent  substitution  of  any  other  document  than  that  which  has 
been  published  and  attested,  the  statute  providently  requires  the  at* 
testing  witnesses  to  subscribe  their  names  in  the  presence  of  the  tes- 
tator. But  it  does  not  prescribe  the  order  of  the  attestation  and  tht 


132  EXECUTION    OF  WILLS 

subscription ;  and  the  attestation  being  intended  to  prove  that  the  will 
had  been  published,  but  the  subscription  being  required  only  to  iden- 
tify the  document  which  had  been  attested  as  a  will ;  whether  the  one 
or  the  other  of  these  acts  shall  have  been  first  in  time  cannot  be  essen- 
tial to  the  objects  of  the  statute  or  the  effect  of  the  publication ;  nor 
can  it  be  material  whether  the  names  of  the  attesting  witnesses  or  that 
of  the  testator  shall  have  been  first  subscribed,  if,  as  in  this  case,  those 
witnesses  had  been  present  when  the  testator  wrote  his  name  or  ac- 
knowledged it  as  his  signature,  and  being  called  upon  for  that  pur- 
pose, actually  witnessed  or  attested  that  fact.  Here,  as  all  three  of 
the  subscribing  witnesses  were  present  at  the  final  publication  of  the 
will,  attested  the  fact  of  signing  and  publishing  by  the  testator,  and 
either  then  subscribed  or  acknowledged  the  subscription  of  their  re- 
spective names  on  the  same  paper,  so  as  to  insure  the  identification  of 
the  will  as  then  published  and  attested,  every  purpose  of  the  statute 
has  been  fulfilled,  and  not  even  a  letter  of  it  violated  or  disregarded. 
*  *  *  Indeed,  were  it  material,  we  might,  with  obvious  truth  and 
propriety,  consider  the  subscription  of  the  names  of  the  three  attest- 
ing witnesses,  and  of  that  of  the  testator  as  one  continuous  series  of 
acts  essentially  indivisible  as  to  time;  the  two  first  witnesses  having 
remained  with  the  testator  until  they  had  in  fact  attested  his  subscrip- 
tion and  that  of  the  third  witness,  and,  all  being  present  and  attesting 
all  together,  the  final  act  of  publication  and  of  attestation  and  sub- 
scription as  to  each  and  all." 

A  case  quite  similar  to  the  case  at  bar  was  decided  in  Virginia  in 
1849.  The  briefs  of  the  attorneys  are  exhaustive  and  worthy  of  ex- 
amination. The  court  in  concluding  its  opinion  said:  "And,  more- 
over, the  fact  whether  in  the  order  of  time  the  testatrix  made  her 
mark  before  or  after  the  subscription  of  the  witnesses  is,  under  the 
circumstances,  in  no  wise  material,  insomuch  as  the  whole  transaction 
must  be  regarded  as  one  continuous  uninterrupted  act,  conducted  and 
completed  within  a  few  minutes,  while  all  concerned  in  it  continued 
present,  and  during  the  unbroken  supervising  attention  of  the  sub- 
scribing witnesses."  Rosser,  etc.,  v.  Franklin,  6  Grat.  (Va.)  1,  26,  52 
Am.  Dec.  97.  In  1856  the  same  rule  was  adopted  in  Connecticut.  The 
court  said :  "So  far  as  the  question  has  been  noticed  in  the  American 
courts,  the  inclination  seems  to  have  been  to  consider  the  order  in 
which  the  testator  and  the  witnesses  put  their  names  to  the  will  is  im- 
material, provided  the  instrument  is  in  all  other  respects  legally  exe- 
cuted. *  *  The  general  and  regular  course  undoubtedly  is  for 
the  testator  in  the  first  place  to  sign  and  execute  the  will  on  his  part, 
and  then  call  upon  the  witnesses  to  attest  the  execution  by  subscribing 
their  names.  But  where,  as  in  the  present  case,  witnesses  are  called 
to  attest  the  execution  of  a  will,  and,  being  informed  what  the  instru- 
ment is,  subscribe  their  names  thereto  as  witnesses,  and  the  testator 
on  his  part,  and  in  their  presence,  duly  executes  the  instrument  as  his 
will,  and  all  is  done  at  one  and  the  same  time,  and  for  the  purpose  of 


ATTESTATION  133 

perfecting  the  instrument  as  a  will,  we  cannot  say  that  it  is  not  legally, 
executed  merely  because  the  names  of  the  witnesses  were  subscribed 
before  that  of  the  testator."  O'Brien  v.  Galagher  et  al.,  25  Conn.  229, 
231.  It  was  held  in  Pennsylvania  in  1860  as  follows:  "Our  statute 
contemplates  undoubtedly  a  signature  by  the  testator  and  then  a  sign- 
ing by  witnesses  in  attestation  of  that  signature,  when  witnesses  sub- 
scribe at  all;  but  where  a  transaction  consists  of  several  parts,  all  of 
which  occur  at  the  same  moment  and  in  the  same  presence,  are  we 
required  to  undo  it  because  they  did  not  occur  in  the  orderly  succes- 
sion which  the  law  contemplates  ?  No  language  of  our  statute  of  wills 
imposes  any  such  necessity  upon  us,  and  we  would  not  decide  any- 
thing so  unreasonable,  except  under  stress  of  very  positive  statutory 
language."  Miller  v.  McNeill,  35  Pa.  222,  78  Am.  Dec.  333.  The 
courts  of  the  states  mentioned  have  not  departed  from  the  doctrine 
established. 

Recent  cases  are  found  in  Illinois  and  South  Carolina.  In  the 
Illinois  case  the  cases  above  mentioned  are  cited  and  approved  as  hold- 
ing the  more  reasonable  doctrine.  The  court  says:  "If  all  of  the  sev- 
eral acts  required  by  the  statute  are  done  upon  the  same  occasion  in 
the  presence  of  the  testator  and  the  attesting  witnesses,  and  as  said 
in  the  case  above  cited  under  their  unbroken  supervising  attention,  and 
as  parts  of  one  entire  transaction,  we  cannot  hold  that  the  instrument 
is  rendered  inoperative  as  a  will  by  merely  proving  the  fact  that  the 
signatures  of  the  witnesses  were  affixed  before  the  signature  of  the 
testator."  Gibson  v.  Nelson,  181  111.  122,  128,  54  N.  E.  901,  903,  72 
Am.  St.  Rep.  254.  The  South  Carolina  court  in  deciding  the  question 
in  a  similar  case  after  calling  attention  to  the  English  statute  and  Eng- 
lish decisions  holding  a  contrary  doctrine  said :  "In  acts  substantially 
contemporaneous  it  cannot  be  said  that  there  is  any  substantial  priori- 
^  *  *  *  NO  doubt  t-ne  usuai  and  more  orderly  way  of  executing 
a  will  is  for  the  testator  to  sign  first  and  then  the  witnesses;  but  to 
hold  that  a  mere  change  in  the  order  of  signing  accidentally  or  other- 
wise would  destroy  the  writing  as  a  will  is  to  sacrifice  substance  for 
mere  form.  When  the  statute  expressly  or  by  necessary  inference  re- 
quires such  formality,  then  nothing  is  left  but  to  enforce  it ;  but  the 
court  will  not  stress  formalities  which  the  statute  does  not."  Kauf- 
man v.  Caughman,  49  S.  C.  159,  27  S.  E.  16,  61  Am.  St.  Rep.  808. 
In  the  cases  hereinbefore  cited,  the  statutes  relative  to  the  execution 
of  wills  in  the  several  states  with  perhaps  one  exception  are  substan- 
tially the  same  as  in  this  state. 

Under  the  English  statute,  1  Viet.  c.  26,  the  English  courts  hold 
that  signature  or  acknowledgment  by  the  testator  must  precede,  in 
point  of  time,  subscription  by  the  witnesses.  That  statute  by  its  re- 
quirement indicated  with  particularity  the  details  of  the  manner  of 
executing  wills,  and  has  been  strictly  construed  by  the  English  courts. 
A  few  of  the  American  state  courts  have  followed  the  English  deci- 
sions and  the  English  reasoning,  and  in  most  cases  where  their  stat- 


134  EXECUTION   OP  WILLS 

utes  of  wills  are  copied  after  the  English  statute,  or  have  made  addi- 
tions to  it.  These  states  are  Massachusetts,  New  Jersey,  and  New 
York.  The  claim  that  in  the  United  States  the  general  rule  upon  the 
proposition  under  discussion,  irrespective  of  statutes,  is  the  same  as 
in  England,  is  unfounded.  Every  American  case  cited  in  the  encyc- 
lopedias or  in  opinions  of  courts  as  authority  to  that  effect  has  been 
read  with  care,  with  the  result  above  stated.  In  several  of  them  state- 
ments to  that  effect  have  been  made,  which  were  clearly  dicta,  and 
where  the  question  was  not  before  the  court. 

In  the  leading  case  relied  upon  by  contestant — Chase  v.  Kittredge, 
11  Allen  (Mass.)  49,  87  Am.  Dec.  687 — that  court  in  a  learned  and 
exhaustive  opinion  analyzes  and  discusses  all  of  the  English  and  other 
cases  upon  the  subject  of  the  execution  of  wills,  and  the  necessary  re- 
quirements to  their  validity  in  that  respect,  and  declares  in  favor  of 
the  doctrine  that  witnesses  should  attest  and  subscribe  after  a  testator 
has  signed  his  will.  That  precise  question,  however,  was  not  in  the 
case.  We  quote  from  the  opinion  to  show  the  precise  question  the 
court  in  fact  decided:  "This  analysis  of  the  cases  shows  that  by  the 
preponderance  of  American  authority,  as  by  the  uniform  current  of 
the  English  decisions,  an  express  requirement  of  statute  that  one  per- 
son shall  sign  or  subscribe  in  the  presence  of  another  is  not  complied 
with  by  signing  in  his  absence  and  merely  acknowledging  in  his  pres- 
ence. And  upon  full  consideration  we  are  satisfied  that  in  this,  as  in 
most  other  legal  matters,  reason  and  principle  are  on  the  side  of  au- 
thority and  precedent.  *  *  *  As  it  appears  by  the  testimony 
stated  in  the  report  that  one  of  the  attesting  witnesses  subscribed  his 
name  before  the  testator  signed  and  in  his  absence,  the  instrument 
offered  for  probate  should  have  been  disallowed." 

In  the  only  Massachusetts  case  where  the  question  was  before  that 
court  it  recognized  the  fact  above  suggested,  and  said:  "The  only 
question  with  which  we  need  to  deal  upon  this  report  is  whether  an 
instrument  is  duly  executed  as  a  will  under  our  statutes  if  the  witness- 
es sign  first,  in  the  presence  of  the  testator,  and  the  testator  signs  im- 
mediately afterwards  in  their  presence;  the  whole  transaction  being 
as  completely  one  as  it  can  be  with  that  order  of  events.  The  question 
has  been  so  fully  answered  by  Mr.  Justice  Gray  in  delivering  the  judg- 
ment of  this  court  in  Chase  v.  Kittredge,  11  Allen  (Mass.)  49,  87  Am. 
Dec.  687,  that  we  think  discussion  unnecessary.  *  *  *  It  is  true 
in  that  case  the  witness  in  question  signed  in  the  absence  of  the  tes- 
tator and  some  time  before  him,  but  the  Chief  Justice  does  not  confine 
his  reasoning  to  that  case,  and  evidently  meant,  with  the  concurrence 
of  his  brethren,  to  establish  a  general  rule  in  the  words  which  we 
have  quoted.  We  regard  that  rule  as  founded  on  good  sense  and  the 
plain  meaning  of  the  word  of  the  statute." 

By  this  decision  the  English  rule  was  first  adopted  by  that  court  in 
a  case  where  it  could  be  considered  stare  decisis.  In  the  case  of  La- 
cey  v.  Dobbs,  63  N.  J.  Eq.  325,  50  Atl.  497,  55  L.  R.  A.  580,  92  Am. 


ATTESTATION  135 

St.  Rep.  667,  the  majority  of  that  court  under  a  statute  declared  by 
it  to  be  more  stringent  than  the  English  statute,  approves  the  English 
cases,  and  cites  Massachusetts  and  New  York  cases  in  support  of  its 
conclusions,  and  also  claims  dicta  contained  in  cases  from  other  states 
as  authority.  The  statute  of  New  York,  like  that  of  New  Jersey,  may 
be  said  to  be  more  stringent  than  the  English  statute  of  1837,  and, 
as  above  stated,  the  courts  of  that  state  follow  the  English  decisions, 
viz.:  Jackson  v.  Jackson,  39  N.  Y.  153,  and  Sisters  of  Charity  v. 
Kelly  et  al.,  67  N.  Y.  409,  both  of  which  cases  are  distinguishable  from 
the  case  at  bar.  In  Reed  v.  Watson,  27  Ind.  443,  and  Duffie  v.  Cor- 
ridon,  40  Ga.  122,  which  are  cited  by  contestant  as  committing  those 
courts  to  the  doctrine  contended  for,  those  courts  did  state  the  doc- 
trine as  claimed,  but  reference. to  the  facts  in  each  case  will  satisfy 
the  investigator  that  such  statements  were  not  necessary  to  a  decision 
of  those  cases. 

What  may  be  called  the  later  or  American  doctrine,  as  announced 
in  the  cases  first  discussed  in  this  opinion,  has  received  criticism  by  at 
least  two  of  the  courts  which  follow  the  English  reasoning.  While 
not  conceding  that  such  criticism  is  merited,  it  is  suggested  that  where 
there  is  no  explicit  requirement  of  the  statute  as  to  the  order  of  the 
signatures,  and  when  all  who  participate  are  present  at  the  same  time 
and  their  acts  are  part  of  one  continuous  transaction,  it  requires  no 
extended  argument  to  determine  that  the  order  of  such  signing  is  im- 
material under  such  a  statute.  Such  a  conclusion  is  founded  upon 
sound  reason,  and  we  think  is  supported  by  the  weight  of  American 
authority.  We  are  of  the  opinion  that  the  construction  contended  for 
by  contestant  is  narrow  and  inequitable,  and,  in  a  case  like  the  pres- 
ent, would  make  the  validity  of  a  will  depend  upon  the  capricious 
memory  of  one  person,  subject  to  such  possible  influence  as  the  activity 
or  inducements  of  interested  parties  might  suggest. 

The  judgment  of  the  circuit  court  is  affirmed. 


3.  PRESENCE  OF  TESTATOR1* 


SHIRES  v.  GLASCOCK. 

(Court  of  Common  Pleas,  1687.    2  Salk.  688.) 

Upon  a  feigned  issue,  the  question  was,  Whether  the  will  was  made 
according  to  the  Statute  of  Frauds  ?  For  the  testator  had  desired  the 
witnesses  to  go  into  another  room,  seven  yards  distant,  to  attest  it,  in 
which  there  was  a  window  broken,  through  which  the  testator  might 
see  them. 

IB  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  75. 


136  EXECUTION    OF   WILLS 

Et  PER  CUR.  The  Statute  required  attesting  in  his  presence,  to 
prevent  obtruding  another  will  in  place  of  the  true  one.  It  is  enough 
if  the  testator  might  see,  it  is  not  necessary  that  he  should  actually 
see  them  signing;  for  at  that  rate  if  a  man  should  but  turn  his  back, 
or  look  off,  it  would  vitiate  the  will.  Here  the  signing  was  in  the 
view  of  the  testator ;  he  might  have  seen  it,  and  that  is  enough.  So 
if  the  testator  being  sick  should  be  in  bed  and  the  curtain  drawn. 


RIGGS  v.  RIGGS. 

(Supreme  Judicial  Court  of  Massachusetts,   1883.     135  Mass.  238,  46  Am. 

Rep.  464.) 

MORTON,  C.  J.16  The  only  question  presented  by  this  report  is  as 
to  the  sufficiency  of  the  attestation  by  the  witnesses  to  the  will  and 
codicil  of  the  testator. 

The  statutes  provide  that,  in  order  to  be  valid,  a  will  or  codicil  must 
be  signed  by  the  testator,  or  by  some  person  in  his  presence  and  by  his 
direction,  "and  attested  and  subscribed  in  his  presence  by  three  or 
more  competent  witnesses."  Gen.  St.  c.  92,  §  6;  Pub.  St.  c.  127,  §  1. 

It  appeared  at  the  hearing  that  the  testator  had  received  a  severe 
injury,  and  was  lying  upon  his  bed  unable  to  move.  His  sight  was 
unimpaired,  but  he  could  only  look  upward,  as  he  was  incapable  of 
turning  his  head  so  as  to  see  what  took  place  at  his  side.  As  to  the 
codicil,  it  appeared  that  it  was  attested  and  subscribed  by  the  three 
witnesses  in  the  same  room  with  the  testator,  at  a  table  by  the  side  of 
the  bed  about  four  feet  from  his  head.  The  contestant  contends  that 
this  attestation  was  insufficient,  because  the  testator  did  not  and  could 
not  see  the  witnesses  subscribe  their  names.  It  has  been  held  by 
some  courts,  upon  the  construction  of  similar  statutes,  that  such  an  at- 
testation is  not  sufficient.  See  Aikin  v.  Weckerly,  19  Mich.  482,  505 ; 
Downie's  Will,  42  Wis.  66;  Tribe  v.  Tribe,  13  Jur.  793;  Jones  v. 
Tuck,  48  N.  C.  202;  Graham  v.  Graham,  32  N.  C.  219.  But  we  are 
of  opinion  that  so  nice  and  narrow  a  construction  is  not  required  by 
the  letter,  and  would  defeat  the  spirit,  of  our  statute. 

It  is  true  that  it  is  stated,  in  many  cases,  that  witnesses  are  not  in 
the  presence  of  a  testator  unless  they  are  within  his  sight ;  but  these 
statements  are  made  with  reference  to  testators  who  can  see.  As 
most  men  can  see,  vision  is  the  usual  and  safest  test  of  presence,  but 
it  is  not  the  only  test.  A  man  may  take  note  of  the  presence  of  an- 
other by  the  other  senses,  as  hearing  or  touch.  Certainly,  if  two  blind 
men  are  in  the  same  room,  talking  together,  they  are  in  each  other's 
presence.  If  two  men  are  in  the  same  room,  conversing  together,  and 
either  or  both  bandage  or  close  their  eyes,  they  do  not  cease  to  be  in 
each  other's  presence. 

is  The  statement  of  facts  is  omitted. 


ATTESTATION  137 

In  England,  where  the  tendency  of  the  courts  has  been  to  construe 
the  statute  with  great  strictness,  it  has  always  been  held  that  a  blind 
man  can  make  a  valid  will,  although  of  course  he  cannot  see,  if  he 
is  sensible  of  the  presence  of  the  witnesses  through  the  other  senses. 
Piercy's  Goods,  1  Rob.  Ecc.  278;  Fincham  v.  Edwards,  3  Cur.  Ecc. 
63.  It  would  be  against  the  spirit  of  our  statutes  to  hold  that,  because 
a  man  is  blind,  or  because  he  is  obliged  to  keep  his  eyes  bandaged, 
or  because,  by  an  injury,  he  is  prevented  from  using  his  sight,  he  is 
deprived  of  the  right  to  make  a  will. 

The  statute  does  not  make  the  test  of  the  validity  of  a  will  to  be 
that  the  testator  must  see  the  witnesses  subscribe  their  names ;  they 
must  subscribe  "in  his  presence" ;  but  in  cases  where  he  has  lost  or 
cannot  use  his  sense  of  sight,  if  his  mind  and  hearing  are  not  affected, 
if  he  is  sensible  of  what  is  being  done,  if  the  witnesses  subscribe  in 
the  same  room,  or  in  such  close  proximity  as  to  be  within  the  line  of 
vision  of  one  in  his  position  who  could  see,  and  within  his  hearing, 
they  subscribe  in  his  presence ;  and  the  will,  if  otherwise  duly  executed, 
is  valid.  In  a  case  like  the  one  before  us,  there  is  much  less  liability 
to  deception  or  imposition  than  there  would  be  in  the  case  of  a  blind 
man,  because  the  testator,  by  holding. the  will  before  his  eyes,  could 
determine  by  sight  that  the  will  subscribed  by  the  witnesses  was  the 
same  will  executed  by  him.  We  are  of  opinion,  therefore,  that  the 
codicil  was  duly  attested  by  the  witnesses. 

The  facts  in  regard  to  the  attestation  of  the  original  will  do  not  ma- 
terially differ  from  those  as  to  the  codicil.  The  witnesses  signed  the 
will  at  a  table  nine  feet  distant  from  the  testator,  which  was  not  in 
the  same  room,  but  near  the  door  in  an  adjoining  room.  The  door 
was  open,  and  the  table  was  within  the  line  of  vision  of  the  testator, 
if  he  had  been  able  to  look,  and  the  witnesses  were  within  his  hear- 
ing. The  testator  could  hear  all  that  was  said,  and  knew  and  under- 
stood all  that  was  done;  and,  after  the  witnesses  had  signed  it,  and 
as  a  part  of  the  res  gestse,  it  was  handed  to  the  testator,  and  he  read 
their  names  as  signed,  and  said  he  was  glad  it  was  done.  For  the 
reasons  before  stated,  we  are  of  opinion  that  this  was  an  attestation 
in  his  presence,  and  was  sufficient. 

The  result  is,  that  the  decree  of  the  justice  who  heard  the  case, 
admitting  the  will  and  codicil  to  probate,  must  be  affirmed.  Decree 
affirmed. 


138         REVOCATION  AND  EEPUBLICATION  OF  WILLS 

REVOCATION  AND  REPUBLICATION  OF  WILLS 
I.  Revocation 

1.  BY  MUTILATION  AND  CANCELLATION  l 

BIBB  v.  THOMAS. 
(Court  of  King's  Bench,  1775.     2  W.  Bl.  1043.) 

Ejectment.  On  trial  before  Hotham,  Baron,  the  question  was, 
whether  a  will  made  by  one  William  Palin  was  duly  revoked?  It  ap- 
peared in  evidence  that  Palin  (who  had  for  two  months  together  fre- 
quently declared  himself  discontented  with  his  will),  being  one  day  in 
bed  near  the  fire,  ordered  Mary  Wilson,  who  attended  him,  to  fetch 
his  will,  which  she  did,  and  delivered  it  to  him;  it  being  then  whole, 
only  somewhat  creased.  He  opened  it,  looked  at  it,  then  gave  it  some- 
thing of  a  rip  with  his  hands,  and  so  tore  it  as  almost  to  tear  a  bit  off : 
then  rumpled  it  together,  and  threw  it  on  the  fire;  but  it  fell  off. 
However,  it  must  soon  have  been  burnt,  had  not  Mary  Wilson  taken  it 
up,  and  put  it  in  her  pocket.  Palin  did  not  see  her  take  it  up,  but 
seemed  to  have  some  suspicion  of  it,  as  he  asked  her  what  she  was  at, 
to  which  she  made  little  or  no  answer.  He  at  several  times  after- 
wards said,  "That  was  not  and  should  not  be  his  will,"  and  bid  her 
destroy  it.  She  said  at  first,  "So  I  will,  when  you  have  made  an- 
other;" but  afterwards,  upon  his  repeated  inquiries,  she  told  him  she 
had  destroyed  it  (though  in  fact  it  was  never  destroyed),  and  she  be- 
lieved he  imagined  it  was  so.  She  asked  him,  when  the  will  was 
burnt,  whom  his  estate  would  go  to  ?  He  answered,  to  his  sister  and  her 
children.  He  afterwards  told  one  J.  E.  that  he  had  destroyed  his  will, 
and  should  make  no  other  till  he  had  seen  his  brother  John  Mills,  and 
desired  J.  E.  would  tell  him  so,  and  that  he  wanted  to  see  him.  He 
afterwards  wrote  to  Mills  in  these  terms :  "Dear  brother,  I  have  de- 
stroyed my  will  which  I  made,  for  upon  serious  consideration  I  was  not 
easy  in  my  mind  about  that  will."  Afterwards  desires  him  "to  come 
down,  for  if  I  die  intestate  it  will  cause  uneasiness."  He  however  died, 
without  making  any  other  will.  The  jury,  with  whom  the  Judge  con- 
curred, thought  this  a  sufficient  revocation  of  the  will,  and  therefore 
found  a  verdict  for  the  plaintiff,  the  lessee  of  the  heir-at-law. 

And  PER  TOT.  CUR.  (Ds  GREY,  C.  J.,  and  GOULD,  BLACKSTONE, 
and  NARES,  JJ.).  This  is  a  sufficient  revocation.  A  revocation  under 
the  statute  may  be  effected,  either  by  framing  a  new  will  amounting 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  79-81. 


REVOCATION  139 

to  a  revocation  of  the  first,  or  by  some  act  done  to  the  instrument  or 
will  itself,  viz.  burning,  tearing,  cancelling,  or  obliteration  by  the  tes- 
tator, or  in  his  presence,  and  by  his  directions  and  consent.  But  these 
must  be  done  animo  revocandi.  Onyons  and  Tryers,  1  P.  Wms.  343 ; 
Hide  and  Hide,  1  Equ.  Cas.  Abr.  409.  Each  must  accompany  the 
other;  revocation  is  an  act  of  the  mind,  which  must  be  demonstrated 
by  some  outward  and  visible  sign  or  symbol  of  revocation.  The  stat- 
ute has  specified  four  of  these;  and  if  these  or  any  of  them  are  per- 
formed in  the  slightest  manner,  this,  joined  with  the  declared  intent, 
will  be  a  good  revocation.  It  is  not  necessary  that  the  will,  or  instru- 
ment itself,  be  totally  destroyed  or  consumed,  burnt,  or  torn  to  pieces. 
The  present  case  falls  within  two  of  the  specific  acts  described  by  the 
statute.  It  is  both  a  burning  and  a  tearing.  Throwing  it  on  the  fire, 
with  an  intent  to  burn,  though  it  is  only  very  slightly  singed,  and  falls 
off,  is  sufficient  within  the  statute.  Rule  discharged. 


HOWARD  v.  HUNTER. 

(Supreme  Court  of  Georgia,  1902.     115  Ga.  357,  41   S.   E.  638,  90  Am.   St. 

Rep.    121.) 

COBB,  J.  A  paper  purporting  to  be  the  last  will  of  J.  W.  Howard 
was  propounded  for  probate  by  the  nominated  executor,  and  certain 
persons,  describing  themselves  as  the  heirs  at  law  of  Howard,  filed 
their  caveat  objecting  to  the  probate  of  the  paper  as  a  will  upon  the 
ground  that,  after  the  paper  was  executed,  Howard  revoked  the  same, 
and  that,  therefore,  it  is  not  his  last  will.  The  case  was  carried  by 
appeal  to  the  superior  court,  and  at  the  trial  in  that  court  the  judge 
directed  a  verdict  in  favor  of  the  propounder.  The  case  is  here  upon 
a  bill  of  exceptions  filed  by  the  caveators,  complaining  that  the  court 
erred  in  refusing  to  grant  them  a  new  trial. 

It  appears  from  the  evidence  that  the  paper  propounded  as  a  will 
was  executed  with  all  the  formalities  required  by  law  for  the  execu- 
tion of  wills.  When  offered  in  evidence,  it  was  objected  to  on  the 
ground  that  it  appeared  from  the  paper  itself  that  as  a  will  it  had  been 
revoked  by  the  testator,  this  objection  being  based  on  the  following 
state  of  facts :  The  will  was  written  on  three  of  the  pages  of  a  double 
sheet  of  legal  cap  paper,  and  signed  on  the  third  page.  The  attesting 
clause  signed  by  the  witnesses  was  near  the  close  of  the  last  page,  the 
name  of  the  last  witness  being  on  the  last  fold  of  the  paper  when  the 
same  was  folded  up.  Across  the  back  of  the  paper,  on  the  last  page, 
and  over  this  last  fold,  were  these  words:  "This  will  is  made  void 
by  one  of  more  recent  date.  J.  W.  Howard."  Had  this  part  of  the 
paper  been  torn  off  as  folded,  the  name  of  one  of  the  witnesses  to  the 
will  would  have  been  torn  from  the  paper.  Did  this  entry  upon  the 
will  have  the  effect  to  revoke  the  same?  The  Code  declares  that  ex- 
press revocation  by  written  instrument  must  be  executed  with  the 


140         REVOCATION  AND  REPUBLICATION  OF  WILLS 

same  formality  and  attested  by  the  same  number  of  witnesses  as  are 
requisite  for  the  execution  of  a  will.  Civ.  Code,  §  3342.  It  is  appar- 
ent, therefore,  that  the  entry  upon  the  will  cannot  have  the  effect  of 
an  express  written  revocation,  and  this  was  practically  conceded  by 
counsel  for  the  plaintiffs  in  error.  It  was  contended  that,  although 
the  entry  would  fail  as  a  written  revocation,  it  would  nevertheless 
operate  as  a  revocation,  for  the  reason  that  it  amounted  to  a  cancel- 
lation of  the  will. 

A  will  may  be  revoked  by  destruction  or  obliteration  done  by  the 
testator  or  by  his  direction  with  the  intention  to  revoke,  and  an  inten- 
tion to  revoke  will  be  presumed  from  the  cancellation  or  obliteration 
of  a  material  portion  of  the  will.  Civ.  Code,  §  3343.  In  order  for 
an  obliteration  or  cancellation  to  be  effective  as  a  revocation,  it  is  neces- 
sary that  the  obliteration  or  cancellation  should  be  upon  the  will  itself, 
and  be  of  such  a  character  as  to  indicate  clearly  that  it  is  the  inten- 
tion of  the  testator  that  the  paper  should  be  no  longer  operative  as  a 
will.  While  the  mere  obliteration  or  cancellation  of  an  immaterial  part 
of  the  paper — such  as  the  seal — will  not,  under  the  law  of  this  state, 
raise  any  presumption  of  an  intention  to  revoke,  if  any  material  part 
of  the  will  is  obliterated  or  marked,  or  words  indicating  an  intention 
to  revoke  written  across  the  same,  a  presumption  of  revocation  will 
arise,  and  the  instrument  will  be  said  to  have  been  revoked  as  a  \vill 
by  cancellation.  If,  however,  the  paper  be  intact,  and  no  material 
part  of  the  same  be  obliterated,  written  across,  or  canceled  in  any  way, 
the  mere  fact  that  there  may  appear  words  on  some  portion  of  the 
paper  upon  which  the  will  is  written  which  would  indicate  an  intention 
to  revoke  will  not  have  the  effect  of  revoking  the  will  when  the  words 
are  not  written  in  such  a  way  as  to  have  the  effect  of  obliterating  or 
canceling  or  destroying  any  words  of  the  will  itself.  A  will  may  be 
revoked  by  a  writing,  or  a  will  may  be  revoked  by  a  cancellation.  In 
each  case  an  intention  to  revoke  is  necessary  to  a  complete  revocation. 

But,  even  though  the  intention  to  revoke  be  present,  a  revocation 
will  not  result  unless  one  of  the  methods  prescribed  in  the  statute  is 
pursued.  Even  though  there  be  an  intention  to  revoke  by  cancellation, 
and  this  intention  be  plainly  apparent,  a  revocation  will  still  not  re- 
sult unless  some  material  portion  of  the  will  is  obliterated  or  canceled. 
And  so,  if  there  be  an  intention  to  revoke  by  written  instrument,  the 
will  will  not  be  revoked  unless  the  writing  be  signed  and  attested  in 
the  manner  provided  for  the  execution  of  a  will  itself.  In  the  present 
case  it  is  manifest  that  the  testator  had  the  intention  to  revoke.  This 
intention  was  to  revoke  by  written  instrument,  and  the  revocation  fails 
for  the  reason  that  the  writing  was  not  signed  in  the  presence  of  three 
witnesses  in  the  manner  provided  in  the  statute.  The  writing  cannot 
operate  as  a  revocation  by  cancellation  for  the  reason  that  no  material 
portion  of  the  will  is  canceled  or  obliterated.  We  think  this  conclu- 
sion is  demanded  by  the  provisions  of  our  Code.  The  provisions  of 
the  Code  on  the  subject  of  revocation  of  wills  are  substantially  the 


REVOCATION  141 

same  as  those  of  the  English  statute  of  frauds.  In  the  case  of  Ladd's 
Will,  60  Wis.  187,  18  N.  W.  734,  50  Am.  Rep.  355,  it  was  held  under 
a  statute  which  contained  provisions  very  similar  to  those  in  our  Code 
on  the  subject  of  revocation  of  wills  by  written  instrument  and  can- 
cellation, that,  where  a  will  was  written  on  the  first  page  of  a  double 
sheet  of  paper,  and  the  testatrix  wrote  upon  the  fourth  page  of  the 
sheet  the  words,  "I  revoke  this  will,"  signing  and  dating  the  same, 
but  such  writing  was  not  attested  or  subscribed  by  witnesses,  the  words 
did  not  take  effect  as  a  written  revocation,  nor  did  the  same  amount 
to  a  cancellation  of  the  will.  The  conclusion  just  stated  was  reached 
in  that  case  after  an  exhaustive  examination  of  authorities,  which  are 
collected  together  in  the  opinion  of  Mr.  Justice  Cassoday.  In  Lewis 
v,  Lewis,  2  Watts  &  S.  (Pa.)  455,  it  was  held  that  the  word  "Obsolete," 
written  by  a  testator  on  the  margin  of  his  will,  but  not  signed  in  the 
manner  provided  in  the  statute  of  Pennsylvania,  did  not  operate  as  an 
express  revocation  of  the  will,  nor  amount  to  a  cancellation  of  the 
same.  In  the  case  of  Warner  v.  Warner's  Estate,  37  Vt.  356,  it  was 
held  that,  where  a  testator  wrote  his  will  mostly  upon  one  side  of  a  half 
sheet  of  foolscap  paper,  the  signature  and  attestation  clause  being  upon 
the  other  side  of  the  same  paper  near  the  top,  and  two  years  after- 
wards wrote  below  all  the  writing,  and  near  the  middle  of  the  sheet, 
"This  will  is  hereby  canceled  and  annulled  in  full  this  15th  day  of 
March,  1859,"  this  amounted  to  a  revocation  of  the  will  by  canceling. 
The  ruling  made  in  that  case  was  said  by  Mr.  Justice  Cassoday,  in  the 
opinion  in  the  case  above  referred  to,  to  be  "in  opposition  to  the  prin- 
ciples maintained  by  some  of  the  best  adjudicated  cases,"  and  atten- 
tion was  called  to  the  fact  that  that  decision  was  condemned  by  one 
of  the  ablest  text  writers  on  the  subject  of  wills.  See  1  Redf.  Wills 
(4th  Ed.)  *318. 

In  the  case  of  Semmes  v.  Semmes,  7  Har.  &  J.  JMd.)  388,  which  is 
sometimes  cited  as  authority  for  the  proposition  that  written  entry 
upon  a  will  may  have  the  effect  to  revoke  the  same  as  by  cancellation, 
it  appeared  that  there  was  not  only  a  written  entry  upon  the  will  in- 
dicating an  intention  to  revoke,  but  a  pen  had  been  drawn  across  the 
signature  of  the  testator  and  the  names  of  the  subscribing  witnesses, 
which,  of  course,  would  have  the  effect  of  canceling  the  will,  inde- 
pendently of  the  entry  upon  the  paper.  As  to  the  effect  of  drawing 
lines  with  a  pen  across  words  in  a  will,  see  In  re  Kirkpatrick's  Will, 
22  N.  J.  Eq.  463 ;  In  re  Glass'  Estate,  14  Colo.  App.  377,  60  Pac.  186. 
In  the  case  of  Evans'  Appeal,  58  Pa.  238,  where  it  was  held  that  a 
will  was  canceled,  in  addition  to  the  word  "Canceled"  having  been 
written  upon  the  back  of  the  will,  the  signature  of  the  testator  to  a 
codicil  was  crossed  out,  and  the  word  "Canceled"  written  under  it; 
the  signature  of  the  testator  appeared  in  two  places  in  the  original 
will,  and  one  of  these  was  crossed  out  by  a  line  drawn  through  it  and 
the  date  written  under  it;  and  the  will  itself  was  torn  in  two  places. 
In  Witter  v.  Mott,  2  Conn.  67,  it  was  held  that  words  expressive  of  an 


142         REVOCATION  AND  REPUBLICATION  OF  WILLS 

intention  to  revoke,  written  by  a  testator  on  the  back  of  his  will,  and 
signed,  but  not  attested,  by  three  witnesses,  operated  as  an  express 
revocation  of  the  will.  There  was,  however,  no  statute  in  Connecticut 
requiring  written  revocations  of  wills  to  be  signed  in  the  presence  of 
three  witnesses.  This  case,  of  course,  furnishes  no  authority,  in  view 
of  our  statute,  for  holding  the  entry  on  the  will  in  the  present  case 
to  be  an  express  revocation  in  writing. 

We  have  called  attention  to  the  cases  from  Vermont,  Maryland,  and 
Pennsylvania  for  the  reason  that  the  two  former  were  relied  on  by 
counsel  for  the  plaintiff  in  error  in  the  present  case,  and  the  latter  is 
sometimes  cited  as  authority  for  the  proposition  that  there  may  be  a 
cancellation  of  a  will  by  an  entry  to  that  effect  upon  the  paper,  al- 
though such  entry  did  not  have  the  effect  of  obliterating  or  canceling 
any  material  part  of  the  will.  The  two  latter  cases  are  clearly  dis- 
tinguishable from  the  present  case  for  the  reasons  above  stated.  The 
Vermont  case  supports  the  contentions  of  counsel,  but  that  case  is  not, 
in  our  opinion,  sound,  and,  as  has  been  shown  above,  it  has  met  with 
adverse  criticism  at  the  hands  of  a  learned  text  writer,  as  well  as  at 
the  hands  of  a  jurist  of  undoubted  learning  and  ability.  See,  also, 
upon  the  subject  of  revocation  of  wills  by  cancellation,  Page,  Wills, 
§§  244-249 ;  Schouler,  Wills  (3d.  Ed.)  §  419  et  seq. ;  1  Redf .  Wills 
(4th  Ed.)  *318  et  seq.;  1  Underh.  Wills,  §  228  et  seq.;  Pritch.  Wills, 
§  262;  Beach,  Wills,  §  55;  1  Jarm.  Wills  (6th  Am.  Ed.  Big.)  *113  et 
seq. 

Error  is  assigned  upon  the  refusal  of  the  judge  to  allow  a  witness 
to  testify  that  a  few  days  before  the  death  of  the  testator  he  had  ar- 
ranged with  him  and  two  other  witnesses  to  meet  the  testator  at  an 
appointed  time  and  place  for  the  purpose  of  witnessing  the  execution 
of  a  will,  and  in  refusing  to  admit  in  evidence  a  paper  purporting  to 
be  a  will  of  J.  W.  Howard,  which  was  unsigned.  There  was  no  error 
in  either  of  the  rulings  complained  of.  The  only  purpose  in  introduc- 
ing this  evidence  was  to  show  an  intention  on  the  part  of  Howard  to 
revoke  the  will  which  was  propounded  for  probate.  There  was  no 
question  as  to  the  fact  that  Howard  had  this  intention.  It  was  mani- 
fest from  the  entry  upon  the  paper,  and  the  controlling  question  in 
the  present  investigation  was  whether  this  intention  had  been  carried 
into  effect.  The  judge  did  not  err  in  any  of  the  rulings  complained 
of,  nor  in  directing  a  verdict  in  favor  of  the  propounder. 

Judgment  affirmed.  All  the  justices  concurring,  except  LEWIS,  J., 
absent. 


BE  VOCATION  143 


2.  DEPENDENT  RELATIVE  REVOCATION* 


Appeal  of  STRONG. 

(Supreme  Court  of  Errors  of  Connecticut,  1906.     79  Conn.  123,  63  Atl.  1089, 
6  L.  R.  A.  [N.  S.]  1107,  118  Am.  St  Rep.  138.) 

BALDWIN,  J.  J.  N.  Harris  died  in  1897,  leaving  by  will  his  residu- 
ary estate  in  trust,  for  21  years  and  the  life  of  his  wife;  a  certain 
share  of  the  annual  income  to  be  meanwhile  annually  paid  to  a  niece 
of  his  wife,  Miss  Elizabeth  M.  Strong,  during  her  life.  At  the  end 
of  that  period,  she  was,  if  then  living,  to  have  a  corresponding  share 
of  the  principal.  She  was  also  given  power  to  dispose  by  will  of  both 
the  income  and  principal  of  such  share,  should  she  die  before  the 
trust  was  terminated.  A  few  months  later  in  the  same  year,  Miss 
Strong  made  a  will  bequeathing  a  silver  tea  set  to  an  uncle  and  exer- 
cising the  power  conferred  by  Mr.  Harris  in  such  a  way  as  to  give 
the  income  of  her  share  of  the  trust  fund  to  her  father  for  life,  re- 
mainder to  her  mother  for  life,  remainder  to  her  sister,  the  appellant, 
for  life,  remainder  in  fee  to  her  brother.  Subsequently,  her  father 
and  mother  having  died  and  the  financial  condition  of  the  appellant 
having  improved,  Miss  Strong  expressed  the  intention  of  changing 
her  will  so  as  to  exercise  the  power  in  favor  of  her  brother  alone. 
After  this,  in  1905,  she  fell  sick,  and  died  after  a  three-days  illness, 
during  most  of  which  she  was  delirious.  The  will  of  1897  (which  was 
typewritten)  was  found  in  an  envelope  in  her  bureau  drawer,  each 
page  torn  in  two  lengthwise,  but  the  cover  untorn.  She  had  written 
at  the  top  of  the  first  page,  "Superseded  by  written  one."  In  the 
same  envelope  was  an  unsigned  draft  of  a  will  in  her  handwriting. 
This  contained  the  same  bequest  of  the  tea  set ;  provided  for  the  dis- 
position of  some  other  family  silver;  and  ended  thus:  "The  income 
left  to  me  by  the  will  of  Jonathan  N.  Harris  of  New  London  at  my 
death  I  desire  should  go  to  my  brother  Edward  L.  Strong  the  said 
Edward  L.  Strong  to  have  said  income  during  his  life  or  in  case  the 
trust  be  terminated,  said  portion  of  the  principal  to  be  paid  to  him 
his  heirs  &  assigns  forever." 

Neither  the  typewritten  will,  nor  the  written  draft  contained  any 
residuary  provisions,  nor  did  the  latter  bear  any  date  or  have  any 
subscription  clause.  Miss  Strong's  heirs  at  law  were  the  appellant,  her 
brother,  and  another  sister.  Her  relations  to  the  appellant  were  most 
affectionate.  The  will  was  torn  a  short  time  previous  to  her  death,  but 
whether  during  or  before  her  last  illness  could  not  be  ascertained. 
The  income  and  principal  of  her  share  (the  amount  of  which  was  over 

a  For  discussion  of  principles,  see  Gardner  on  Wills  (2d   Ed.)  §  82. 


144         REVOCATION  AND  REPUBLICATION  OF  WILLS 

$15,000)  in  the  trust  fund,  in  default  of  her  exercise  of  her  power, 
was,  by  the  will  of  Mr.  Harris,  to  go  to  certain  of  his  nephews  and 
nieces  and  their  representatives.  The  paper  presented  to  the  court  of 
probate  as  the  will  of  Miss  Strong  was  in  a  condition  which  had  some 
tendency  to  show  that  she  had  revoked  it.  It  had  been  torn  and  it 
had  been  marked  by  her  as  "Superseded  by  written  one."  It  has  not 
been  found  by  the  superior  court  that  she  tore  it,  but  we  shall  treat  the 
case  as  if  such  a  finding  had  been  made,  and  as  if  whatever  she  did 
was  done  before  she  became  delirious  in  her  last  illness. 

No  act  of  tearing  or  cancellation  destroys  a  will  unless  it  be  done 
with  the  intention  of  revoking  it.  An  intent  to  revoke  may  be  either 
absolute  and  final,  or  dependent  on  the  existence,  or  a  belief  in  the 
existence  of  circumstances.  The  words  "Superseded  by  written  one" 
sufficiently  indicate  that  when  Miss  Strong  wrote  them  she  assumed 
that  the  draft  in  her  handwriting  then  had  full  testamentary  force  and 
effect,  and  so,  as  it  covered  the  same  ground  in  a  different  manner 
had  destroyed  her  previous  dispositions  by  will.  These  were  treated 
as  destroyed  simply  because  they  had  been  replaced  by  something  else. 
Here  she  was  acting  under  a  mistake,  and  one  apparent  from  the  words 
used  to  effect  the  cancellation.  This  mistake  was  plainly  the  sole 
cause  for  the  revocation  which  she  intended  to  declare.  Unless  she 
exercised  the  power  of  disposition  given  her  by  Mr.  Harris,  the  fund 
which  was  subject  to  it  would  go  to  strangers  to  her  blood.  The  main 
object  both  of  the  will  and  of  the  draft  will  was  to  exercise  it.  The 
case,  therefore,  is  within  the  reason  of  the  rule  that  a  writing  pur- 
porting to  revoke  a  will  on  account  of  the  existence  of  a  certain  fact 
does  not  revoke  it  if  there  be  no  such  fact.  Dunham  v.  Averill,  45 
Conn.  61,  80,  29  Am.  Rep.  642. 

It  is  true  that  the  mistake  is,  at  bottom,  one  of  law.  Miss  Strong 
supposed  that  her  unsigned  and  unattested  will  would  have  full  ef- 
fect upon  her  decease.  In  law  it  had  no  effect.  But  as  respects  a 
question  of  this  nature,  it  is  immaterial  whether  the  mistake  under 
which  the  act  of  revocation  was  done  were  one  of  fact  or  law.  The 
act  was  nothing  unless  done  with  the  intent  of  revocation.  If  the 
intent  to  revoke  was,  as  in  this  case,  clearly  dependent  on  a  reliance 
upon  a  certain  legal  consequence  attributed  to  certain  circumstances, 
an  error  in  attributing  that  effect  to  them  is  as  effectual  a  bar  to  an 
actual  revocation  as  if  it  were  a  pure  error  of  fact.  Security  Co.  v. 
Snow,  70  Conn.  288,  294,  39  Atl.  153,  66  Am.  St.  Rep.  107;  Stickney 
v.  Hammond,  138  Mass.  116,  120;  Clarkson  v.  Clarkson,  2  Sw.  &  Tr. 
497.  The  expression  of  the  motive  for  the  act  of  cancellation  must 
govern  the  result  of  the  act  of  tearing  the  will.  The  will  and  draft 
will  having  been  found  in  the  same  envelope.  It  is  evident  that  what- 
ever Miss  Strong  did  constituted  one  transaction  proceeding  from  the 
same  intent  and  actuated  by  the  same  cause.  It  is  found  by  the  su- 
perior court  that  the  will  signed  in  1897,  was  executed  in  all  respects 
according  to  law,  and  that  Miss  Strong  was  then  of  full  age  and  sound 


REVOCATION  145 

mind  and  memory.  It  should,  therefore,  have  been  admitted  to  pro- 
bate. 

The  superior  court  is  advised  to  disaffirm  the  decree  of  the  court  of 
probate,  and  admit  the  paper  propounded  as  the  will  of  Miss  Strong 
to  probate,  as  such. 

No  costs  will  be  taxed  in  this  court.    The  other  Judges  concurred. 


3.  BY  A  SUBSEQUENT  WRITING* 


In  re  CUNNINGHAM. 

(Supreme  Court  of  Minnesota,   1888.     38  Minn.   169,  36  N.  W.   269,  8  Am. 

St.  Rep.   650.) 

A  will  executed  by  Robert  Cunningham,  deceased,  was  offered  for 
probate,  and  opposed  by  Rachel  C.  Somerville  and  others,  on  the 
ground  that  a  later  will  had  been  made,  revoking  the  provisions  of 
the  former.  The  will  was  admitted,  and  on  appeal  to  the  district  court 
the  action  of  the  probate  court  was  reversed.  The  proponent,  Cun- 
ningham, appeals. 

DICKINSON,  J.  The  will  of  Robert  Cunningham,  executed  in  1877, 
having  been  offered  for  probate  in  the  probate  court  of  Olmstead 
county,  was,  upon  proper  proceedings  in  that  court,  allowed  as  the 
last  will  and  testament  of  the  deceased.  The  contestants,  Rachel  C. 
Somerville  and  others,  who  had  opposed  the  probate  of  the  will,  ap- 
pealed to  the  district  court.  Upon  the  trial  of  the  appeal  in  that  court, 
after  the  proponent  had  shown  the  execution  of  the  will,  the  con- 
testants introduced  evidence,  which  was  received,  against  the  propo- 
nent's objections,  of  the  execution  of  a  later  will,  executed  in  1884, 
and  containing  a  clause  expressly  revoking  all  former  wills.  The 
court  finding  that  the  execution  of  this  later  will  had  been  estab- 
lished by  the  evidence,  and  that  the  will  of  1877  had  been  thereby  re- 
voked, reversed  the  determination  of  the  probate  court;  whereupon 
judgment  was  entered  declaring  the  earlier  will  to  have  been  revoked 
by  the  later,  and  that  it  was  not  the  last  will  and  testament  of  the  de- 
ceased. The  proponent  appealed  to  this  court. 

The  later,  will  of  1884  was  destroyed  by  the  testator  at  a  subsequent 
date,  but  at  that  time  the  testator  was  not  mentally  competent  to  make 
or  revoke  a  will;  so  that  his  act  was  in  a  legal  point  of  view  ineffec- 
tual. Assuming,  what  the  evidence  tended  to  disclose,  that  the  con- 
tents of  the  later  will  in  respect  to  the  disposition  of  the  property  of 
the  testator  were  unknown,  and  could  not  be  fully  established,  the  pre- 

»For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  86. 
DUNM.CAS.  WILLS — 10 


146  REVOCATION   AND    REPUBLICATION    OF    WILLS 

liminary  question  is  suggested  whether,  in  such  a  case,  the  revocatory 
clause  above  being  shown,  that  would  be  effectual  as  a  revocation  of 
the  former  will,  or  would  that  clause  fail  to  have  effect  because  the 
will  could  not  be  executed  in  the  disposition  of  the  estate  ?  It  may  of 
course  be  that  the  testator  would  not  have  revoked  a  former  will  ex- 
cept for  the  purpose  of  having  his  intentions  as  to  his  property  as 
declared  in  the  later  will  carried  into  effect.  But  the  speculations  of  a 
court  as  to  the  undisclosed  reasons  and  the  full  purposes  of  the  testator 
cannot  be  allowed  to  control,  as  against  the  certain,  unequivocal  act  and 
declaration  of  the  testator  whereby  he  did  revoke,  as  he  had  a  right  to 
do.  Such  a  revocation  is  in  general  effectual,  although  the  will  cannot 
otherwise  be  executed.  Com.  Dig.  "Estates  by  Devise."  Revocation, 
(E  1) ;  Quinn  v.  Butler,  L.  R.  6  Eq.  225 ;  Tupper  v.  Tupper,  1  Kay 
&  J.  665;  Wallis  v.  Wallis,  114  Mass.  510;  Jones  v.  Murphy,  8  Watts 
&  S.  (Pa.)  275-300;  Price  v.  Maxwell,  28  Pa.  23 ;  Hairston  v.  Hairston, 
30  Miss.  276;  Gossett  v.  Weatherly,  58  N.  C.  46;  James  v.  Marvin,  3 
Conn.  576.  There  are  some  limitations  to  this  rule,  which  are  not  ap- 
plicable here,  since  this  will  was  properly  executed,  and,  so  far  as  ap- 
pears, capable  of  being  legally  carried  into  effect  according  to  its  terms, 
were  it  not  for  the  uncertainty  in  respect  thereto  arising  from  its  sub- 
sequent destruction. 

But  the  point  more  strenuously  urged  is  that  the  evidence  of  the 
execution  of  the  later  will,  with  its  revocatory  clause,  was  inadmis- 
sible to  oppose  the  probate  of  the  former  will,  for  the  reason  that  the 
revocatory  writing  had  never  been  established  as  a  will  by  the  probate 
court.  This  position  is  supported  by  some  decisions  and  dicta  in  Mas- 
sachusetts. Laughton  v.  Atkins,  1  Pick.  (Mass.)  535;  Stickney  v. 
Hammond,  138  Mass.  116;  Sewall  v.  Robbins,  139  Mass.  164,  29  N. 
E.  650.  But  the  general  rule  in  that  state,  excluding  such  evidence,  is 
deemed  inapplicable  when  the  later  will  is  itself  incapable  of  being 
admitted  to  probate  by  reason  of  its  having  been  lost  or  destroyed,  so 
that  its  whole  contents  cannot  be  clearly  proved.  In  such  case,  the 
revocatory  clause  being  shown,  it  is  admissible  in  evidence  in  opposi- 
tion to  the  probate  of  a  former  will.  Wallis  v.  Wallis,  114  Mass.  510. 
Other  courts  have  held  to  the  admissibility  of  such  evidence  without 
qualification.  Nelson  v.  McGiffert,  3  Barb.  Ch.  (N.  Y.)  158-164,  49 
Am.  Dec.  170;  Stevens  v.  Hope,  52  Mich.  65,  17  N.  W.  698;  Barks- 
dale  v.  Hopkins,  23  Ga.  332;  Rudy  v.  Ulrich,  69  Pa.  177,  8  Am.  Rep. 
238. 

In  accordance  with  the  weight  of  authority,  and,  as  is  considered 
by  the  majority  of  the  court,  with  the  better  reason,  we  hold  this  evi- 
dence to  have  been  competent  in  proof  of  an  act  of  revocation.  The 
testator  might  effectually  revoke  his  former  will  by  a  writing  so  de- 
claring, and  executed  as  this  instrument  was  executed,  (chapter  47, 
§  9,  Gen.  St.  1878,)  as  he  might  also  by  other  means.  According  to 
almost  all  of  the  authorities  in  Massachusetts,  as  well  as  elsewhere, 
such  an  instrument,  its  proper  execution  being  shown,  would  be  equal- 


REVOCATION  147 

ly  valid  as  a  revocation,  whether  it  might  or  might  not  (by  reason  of 
its  contents  being  improvable)  be  allowed  as  a  will  disposing  of  the 
estate.  We  are  unable  to  recognize  any  reason  for  the  rule  that  such 
an  act  of  revocation  is  not  competent  evidence  (upon  the  issue  whether 
a  prior  instrument  offered  for  probate  was  still  in  force  as  the  tes- 
tator's will  at  the  time  of  his  death)  until,  if  it  be  capable  of  having 
effect  as  a  will,  it  be  first  allowed  as  such  in  the  probate  court.  What- 
ever may  be  said  as  to  the  expediency  of  a  court  proceeding  with  the 
trial  of  the  issue  presented  by  the  propounding  of  an  instrument  for 
probate  when  it  is  discovered  that  a  later  instrument  has  been  executed 
which  ought  to  be  submitted  for  probate,  it  is  considered  that  the 
later  revocatory  will  (its  proper  execution  being  shown)  is  not  sub- 
ject to  the  objection  that  as  evidence  it  is  incompetent,  irrelevant,  or 
immaterial. 

The  case  shows  no  other  substantial  grounds  for  the  assignments 
of  error,  and  the  judgment  is  affirmed. 


SIMPSON  v.  FOXON. 

(High  Court  of   Justice,   Probate  Division.     [1907]   P.   54.) 

On  March  15,  1898,  John  Foxon  made  a  will  disposing  of  all  of 
his  property  and  appointing  his  daughter  executrix.  On  September 
11,  1903,  he  duly  executed  as  a  will  a  document  on  a  printed  form 
commencing:  "This  is  the  last  and  only  will  and  testament  of  me, 
John  Foxon."  This  document  disposed  of  only  a  life  insurance  pol- 
icy of  £4.  13s.  and  appointed  William  Biggs  executor.  On  April 
11,  1905,  he  duly  executed  as  a  codicil  a  further  document  described 
as  "a  codicil  to  the  last  will."  This  codicil  gave  certain  bequests,  re- 
voked all  previous  appointments  of  executors  and  trustees,  and  ap- 
pointed Herbert  Simpson  and  William  Biggs  to  be  joint  executors  and 
trustees  "of  my  will." 

SIR  GOREXL  BARNES,  President.4  There  is  no  doubt  to  my  mind 
that,  as  a  matter  of  fact,  the  deceased  cannot  really  have  intended  the 
policy  form  of  will  to  have  been  a  revocation  of  his  general  disposi- 
tions and  to  have  left  himself  intestate  as  to  the  greater  part  of  his 
property.  I  do  not  suppose  that  anyone,  having  these  facts  before 
him,  could  come  to  the  conclusion  that  the  deceased  did  so  intend. 

But  what  a  man  intends  and  the  expression  of  his  intention  are 
two  different  things.  He  is  bound,  and  those  who  take  after  him  are 
bound,  by  his  expressed  intention.  If  that  expressed  intention  is 
unfortunately  different  from  what  he  really  desires,  so  much  the 
worse  for  those  who  wish  the  actual  intention  to  prevail.  The  prin- 
ciple has  been  very  fully  considered  in  a  number  of  authorities.  I 

*  The  statement  of  facts  has  been  abbreviated. 


148  REVOCATION   AND    REPUBLICATION    OP   WILLS 

think  there  is  a  good  deal  more  authority  than  was  stated  to  me  in 
the  arguments.  The  numerous  authorities  reported,  such,  for  instance 
as  Plenty  v.  West  (1845)  4  Notes  of  Cases,  103,  1  Rob.  264,  where 
the  words  in  question  were  "this  is  the  last  will,"  arose  out  of  some 
difference  of  opinion  which  existed  in  former  days  as  to  the  effect  to 
be  given  to  those  words,  but  which  may  safely  be  considered  as  set 
at  rest  by  the  later  decisions.  The  words  "the  last  will"  would  not 
revoke  a  former  will,  if  not  inconsistent  with  it;  the  last  will  might 
even  tend  to  confirm  what  had  gone  before.  And  so  it  is  necessary 
to  see  what  are  the  provisions  in  the  last  will,  and  if  these  provisions 
are  inconsistent  with  those  in  the  earlier  document  it  may  be  that  the 
later  revokes  the  earlier  one.  But  it  does  not  necessarily  follow  that 
it  always  will  do  so  if  the  two  documents  can  stand  properly  together. 
The  principle  to  be  generally  applied  in  considering  matters  of  this 
kind  is  very  well  stated  in  Lemage  v.  Goodban  (1865)  L.  R.  1  P.  & 
D.  57,  at  page  62,  where  Lord  Penzance,  quoting  from  Williams  on 
Executors  (6th  Ed.)  p.  156  (in  10th  Ed.  pp.  119,  120),  says:  "The 
mere  fact  of  making  a  subsequent  testamentary  paper  does  not  work 
a  total  revocation  of  a  prior  one,  unless  the  latter  expressly,  or  in 
effect,  revoke  the  former,  or  the  two  be  incapable  of  standing  to- 
gether; for  though  it  be  a  maxim,  as  Swinburne  says  above,  that  as 
no  man  can  die  with  two  testaments,  yet  any  number  of  instruments, 
whatever  be  their  relative  date,  or  in  whatever  form  they  may  be 
(so  as  they  be  all  clearly  testamentary),  may  be  admitted  to  probate, 
as  together  containing  the  last  will  of  the  deceased.  And  if  a  sub- 
sequent testamentary  paper  be  partly  inconsistent  with  one  of  an 
earlier  date,  then  such  latter  instrument  will  revoke  the  former,  as  to 
those  parts  only,  where  they  are  inconsistent."  The  learned  judge 
added:  "This  passage  truly  represents  the  result  of  the  authorities"; 
and  he  continued  as  follows :  "The  will  of  a  man  is  the  aggregate  of 
his  testamentary  intentions,  so  far  as  they  are  manifested  in  writing, 
duly  executed  according  to  the  statute.  And  as  a  will,  if  contained  in 
one  document,  may  be  of  several  sheets,  so  it  may  consist  of  several 
independent  papers,  each  so  executed.  Redundancy  or  repetition  in 
such  independent  papers  will  no  more  necessarily  vitiate  any  of  them, 
than  similar  defects  if  appearing  on  the  face  of  a  single  document. 
Now  it  was  argued  that  in  the  case  of  more  than  one  testamentary 
paper,  each  professing  in  form  to  be  the  last  will  of  the  deceased,  it 
is  necessary  for  the  court,  before  concluding  that  they  together  con- 
stitute the  will,  to  be  satisfied  that  the  testator  intended  them  to  op- 
erate together  as  such.  In  one  sense  this  is  true,  for  the  intention  of 
the  testator  in  the  matter  is  the  sole  guide  and  control.  But  the  'in- 
tention' to  be  sought  and  discovered  relates  to  the  disposition  of  the 
testator's  property,  and  not  to  the  form  of  his  will.  What  dispositions 
did  he  intend? — not  which,  or  what  number,  of  papers  did  he  desire 
or  expect  to  be  admitted  to  probate? — is  the  true  question.  And  so 
this  court  has  been  in  the  habit  of  admitting  to  probate  such,  and  as 


REVOCATION  149 

many  papers  (all  properly  executed),  as  are  necessary  to  effect  the 
testator's  full  wishes,  and  of  solving  the  question  of  revocation  by 
considering  not  what  papers  have  been  apparently  superseded  by  the 
act  of  executing  others,  but  what  dispositions,  it  can  be  collected  from 
the  language  of  all  the  papers  that  the  testator  designed  to  revoke  or 
to  retain." 

That  being  the  principle  which  seems  to  me  applicable  to  the  pres- 
ent case,  I  do  not  feel  any  difficulty  in  arriving  at  a  decision  upon  it. 
In  my  opinion  all  three  documents  should  be  admitted  to  probate.  I 
do  not  think,  having  regard  to  the  circumstances  which  these  testa- 
mentary papers  disclose,  that  the  words  "last  and  only"  can  be  taken  as 
revoking  what  had  been  done  by  the  previous  will. 

The  document  which  contains  the  words  in  question  is  a  printed 
form,  evidently  drawn  up  for  the  purpose  of  disposing  of  a  policy 
of  assurance  only  and  appointing  an  executor  to  deal  with  that  matter 
only.  It  is  very  unfortunate  that  it  should  have  been  drawn. in  this 
way,  but  it  is,  notwithstanding  the  words  "and  only,"  not  intended  to 
be  a  complete  disposition  of  the  testator's  property. 

If  the  other  view  were  adopted  it  would  lead  to  this,  that  apart  from 
the  insurance  money,  the  whole  of  this  man's  property  would  remain 
undealt  with,  except  as  to  what  is  disposed  of  by  the  codicil,  al- 
though the  testator  cannot  possibly  have  had  any  idea  that  he  had  not 
disposed  or  was  not  disposing  of  all  that  he  could  have  dealt  with. 

The  words  "last  and  only"  cannot  be  treated  as  an  express  revoca- 
tion ;  and,  applying  the  principles  I  have  already  referred  to,  the  dis- 
positions of  this  man's  property  seem  to  me  to  show  that  the  docu- 
ment in  question  was  not  intended  by  him  to  be,  and  it  is  not,  upon 
its  face,  a  controlling  and  revoking  disposition.  In  other  words,  nei- 
ther by  express  intention  nor  by  disposition  of  property  can  you 
gather  that  the  words  "and  only"  are  to  be  treated  as  a  revocation  of 
the  earlier  will. 

I  grant  probate  of  all  three  documents.  The  costs  must,  of  course, 
come  out  of  the  estate 


150  REVOCATION  AND  REPUBLICATION  OF  WILLS 

4.  BY  CHANGE  OF  CIRCUMSTANCES 
(A)  Birth  of  Issue9 

CARPENTER  v.  SNOW. 

(Supreme  Court  of  Michigan.  1898.     117  Mich.  489,  76  N.  W.  78,  41  I,.  R.  A. 

820,    72   Am.    St.    Rep.    576.) 

MOORE,  J.  This  is  a  proceeding  to  construe  a  will  made  by  Herbert 
M.  Snow,  who  was  married  in  1883.  July  8,  1884,  Clara  L.  Snow 
was  born.  The  will  in  question  was  made  April  20,  1888.  Harry  A. 
Snow  was  born  May  7,  1889,  and  Gertrude  E.  Snow  was  born  April 
28,  1892.  All  these  children  were  living  when  the  death  of  Mr.  Snow 
occurred,  in  October,  1897.  Mr.  Carpenter  was  named  as  executor  in 
the  will.  Omitting  the  formal  parts  of  the  instrument,  it  reads  as 
follows :  "Second.  After  the  payment  of  my  debts  and  the  expenses  of 
administering  my  estate,  I  give,  devise,  and  bequeath  all  my  property, 
real  and  personal,  and  all  the  property  of  every  kind  and  nature  what- 
soever of  which  I  may  die  possessed,  to  my  beloved  wife,  Mary  L. 
Snow."  As  no  provision  was  made  in  the  will  for  Clara,  who  was 
born  before  the  will  was  made,  or  for  the  two  children  born  after- 
wards, the  bill  is  filed  to  determine  the  respective  rights  of  the  widow 
and  children.  In  the  court  below  a  decree  was  made  holding  the 
after-born  children  took  no  portion  of  the  estate,  and  provided: 
"This  decree  is  made  without  prejudice  to  the  rights  of  the  defendant 
Clara  L.  Snow  to  take  proceedings  at  law  to  determine  whether  the 
omission  to  provide  for  her  in  said  will  was  made  intentionally,  or 
by  mistake,  or  by  accident." 

Extraneous  testimony  was  taken,  which,  if  competent,  shows  that 
Mr.  Snow  intended  to  give  all  his  property  to  his  wife  to  the  ex- 
clusion of  his  children,  having  confidence  in  her  management  of  the 
property,  and  her  sharing  it  with  the  children.  While  this  testimony 
may  be  competent  to  show  that  the  omission  to  provide  for  Clara  was 
not  unintentional,  we  do  not  think  it  competent  to  show  the  testator  did 
not  intend  to  provide  for  his  unborn  children. 

The  provisions  of  the  statute  applying  to  the  facts  disclosed  by  this 
record,  are  as  follows :  How.  Ann.  St.  §  5809,  provides :  "When  any 
child  shall  be  born  after  the  making  of  his  father's  will,  and  no  pro- 
vision shall  be  made  therein  for  him,  such  child  shall  have  the  same 
share  in  the  estate  of  the  testator  as  if  he  had  died  intestate,  and  the 
share  of  such  child  shall  be  assigned  to  him  as  provided  by  law  in  case 
of  intestate  estates,  unless  it  shall  be  apparent  from  the  will  that  it 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  87,  88. 


REVOCATION  151 

was  the  intention  of  the  testator  that  no  provision  should  be  made 
for  such  child."  Section  5810  provides:  "When  any  testator  shall 
omit  to  provide  in  his  will  for  any  of  his  children,  or  for  the  issue  of 
any  deceased  child,  and  it  shall  appear  that  such  omission  was  not 
intentional,  but  was  made  by  mistake  or  accident,  such  child,  or  the 
issue  of  such  child,  shall  have  the  same  share  in  the  estate  of  the  tes- 
tator as  if  he  had  died  intestate,  to  be  assigned  as  provided  in  the 
preceding  section." 

It  will  be  noticed  the  language  in  the  two  sections  with  reference 
to  showing  the  intention  of  the  testator  is  not  at  all  alike.  In  the 
last-named  section  it  is  not  required  the  omission  to  provide  must  be 
shown  by  the  will  itself  to  be  intentional.  This  section  has  been  con- 
strued by  this  court  in  Re  Stebbins'  Estate,  94  Mich.  304,  54  N.  W. 
159,  34  Am.  St.  Rep.  345,  where  it  is  held  the  question  as  to  whether 
the  omission  to  provide  for  a  child  in  the  will  was  intentional  or  other- 
wise is  a  question  of  fact  which  may  be  submitted  to  a  jury.  Sec- 
tion 5809  has  never  been  construed  by  this  court.  The  decisions  of 
other  courts  cannot  be  harmonized.  The  case  of  Hawhe  v.  Railroad 
Co.,  165  111.  561,  46  N.  E.  240,  is  in  harmony  with  the  decree  made  by 
the  trial  judge. 

The  language  of  the  statute  would  seem  to  be  very  plain.  At  the 
common  law,  marriage  and  the  birth  of  children  after  the  will  was 
made  would  revoke  the  will.  The  legislature  evidently  had  in  mind 
that,  if  the  father  failed  to  make  provision  in  his  will  for  the  unborn 
child,  the  law  should  make  provision  for  it,  unless  the  parent  made  it 
clear  in  the  will  itself  that  the  omission  to  provide  was  intentional. 
How  can  it  be  said  from  the  language  used  in  this  will  that  the  father 
intended  to  cut  off  from  inheriting  his  property  two  children  who 
afterwards  came  to  him,  when  no  reference  is  made  to  them  in  the 
will,  and  neither  of  them  was  at  that  time  conceived?  A  similar  stat- 
ute to  this  was  construed  in  Bresee  v.  Stiles,  22  Wis.  120,  where  it 
was  held  the  unborn  children  were  to  take  the  same  share  in  the  estate 
as  if  the  parent  had  died  intestate. 

A  like  statute  was  construed  in  Wasserman  v.  Railway  Co.  (C.  C.) 
22  Fed.  872.  We  cannot  do  better  than  to  quote  from  the  opinion  of 
Justice  Brewer:  "In  this  case  the  primary  question  I  am  reluctantly 
compelled  to  decide  in  favor  of  the  complainant,  Wasserman.  I  say 
reluctantly,  for  when  a  man  on  the  eve  of  death,  having  a  child  five 
years  of  age,  and  living  with  the  wife  to  be  delivered  of  a  second 
child  within  twenty  days,  makes  a  will  giving  all  his  property  to  his 
wife,  I  think  the  common  voice  will  say  that  he  intended  no  wrong 
to  either  the  born  or  unborn  child,  but  trusted  to  his  wife — their 
mother — to  do  justice  by  each,  and  believed  that  she,  with  the  prop- 
erty in  her  hands,  could  handle  it  more  advantageously  for  herself 
and  children  than  if  the  interests  in  it  were  distributed.  As  a  ques- 
tion of  fact  independent  of  statute,  I  have  no  doubt  that  Mr.  Wasser- 
man had  no  feeling  either  against  the  born  or  unborn  child,  but,  hav- 


152  REVOCATION    AND    REPUBLICATION    OF   WILLS 

ing  implicit  faith  in  his  wife,  meant  that  she  should  take  the  entire 
property,  and  believed  that  out  of  that  property  and  her  future  labors 
she  would  take  care  of  his  children.  But  the  legal  difficulty  is  this : 
The  statute  says  that  it  must  be  'apparent  from  the  will'  that  the  tes- 
tator intended  that  the  unborn  child  should  not  be  specially  pro- 
vided for.  How  can  any  intention  as  to  this  child  be  gathered  from 
the  will  alone?  It  simply  gives  everything  to  the  wife;  is  silent 
as  to  the  children.  If  I  could  look  beyond  the  will,  my  conclusion 
would  be  instant  and  unhesitating.  Limited  by  the  statute  to  the 
instrument  itself,  what  can  be  gathered  therefrom?  It  is  simply  a 
devise  of  all  property  to  the  wife.  No  reference  is  made  to  chil- 
dren, born  or  unborn.  Can  I  infer  from  its  silence  an  intention 
to  disinherit?  If  so,  the  mere  omission  from  a  will  would  always 
stand  as  proof  of  an  expressed  intention.  And  whatever  of  apparent 
hardships  there  may  be  in  the  present  case  a  fixed  and  absolute  rule 
prescribed  by  statute  cannot,  for  such  reason  alone,  be  ignored.  That 
the  rule  was  intentionally  thus  prescribed  is  evident,  not  alone  from 
the  clear  letter  of  the  statute,  but  also  from  the  history  of  this  ques- 
tion at  common  law,  and  the  various  provisions  of  the  statutes  of 
other  states.  At  common  law  the  will  of  an  unmarried  man  dispos- 
ing of  all  his  property  was  presumably  revoked  by  the  subsequent 
marriage  and  the  birth  of  a  child.  This  rule  was  borrowed  from  the 
civil  law.  Whether  revocation  would  follow  from  subsequent  mar- 
riage alone  or  birth  of  a  child  alone  was  perhaps  a  doubtful  question. 
In  Brush  v.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  506,  it  was  held  that  both 
must  concur,  while  in  McCullum  v.  McKenzie,  26  Iowa,  510,  the  birth 
of  a  child  alone  was  adjudged  sufficient.  See,  generally,  upon  this 
question,  1  Redf.  Wills,  c.  7;  1  Williams,  Ex'rs,  cc.  3,  5 ;  4  Kent, 
Comm.  421,  426.  It  was  also,  for  a  while,  at  least,  disputed  whether 
such  revocation  followed  absolutely  from  subsequent  marriage  and 
birth  of  child,  or  was  only  to  be  presumed,  and  the  presumption  sub- 
ject to  be  overthrown  by  evidence  of  the  testator's  intention.  Lord 
Mansfield,  in  Brady  v.  Cubitt,  1  Doug.  39,  ruled  that  the  presump- 
tion of  revocation  from  the  marriage  and  birth  of  issue,  like  all  other 
presumptions,  may  be  rebutted  by  every  sort  of  evidence.  See,  also, 
1  Phillim.  Ecc.  473.  Such  seems  to  have  been  generally  the  ruling  of 
the  ecclesiastical  court.  On  the  other  hand,  in  Goodtitle  v.  Otway,  2 
H.  Bl.  522,  Chief  Justice  Eyre  held  that  'in  case  of  revocation  by 
operation  of  law  the  law  pronounces  upon  the  ground  of  a  presumptio 
juris  et  de  jure  that  the  party  did  intend  to  revoke,  and  that  presump- 
tio jure  is  so  violent  that  it  does  not  admit  of  circumstances  to  be  set 
up  in  evidence  to  repel  it.'  And  in  the  leading  case  of  Marston  v. 
Roe,  8  Adol.  &  E.  14,  by  all  the  judges  in  the  exchequer  chamber,  it 
was  finally  decided  that  the  revocation  of  the  will  took  place  in  con- 
sequence of  a  rule  or  principle  of  law,  independently  altogether  of 
any  question  of  intention  of  the  party  himself.  Such  being  the  final 
solution  of  the  question  in  the  English  court,  it  cannot  be  that  the  pur- 


REVOCATION  153 

pose  of  the  statute  in  question  was  to  open  the  door  to  any  other 
evidence  of  intention  than  those  expressly  named.  On  this  side  of 
the  waters  the  matter  has  generally  been  regulated  by  statute,  with  a 
prevailing  tendency  to  declare  that  the  after-born  child  takes  the  same 
share  that  it  would  have  done  if  the  father  had  died  intestate;  or,  in 
other  words,  the  will  is  absolutely  revoked  pro  tanto,  unless  there  is 
some  provision  made  for  such  child,  or  an  express  intention  that  it 
should  receive  nothing.  The  statute  of  Wisconsin  is  identical  with 
that  of  Nebraska,  and  in  Bresee  v.  Stiles,  22  Wis.  120,  the  inquiry  as 
to  the  testator's  intentions  was  declared  to  be  limited  to  the  language 
of  the  will,  and,  the  will  being  silent,  the  after-born  child  inherited. 
See,  among  many  cases,  the  following,  which  show  how  carefully  the 
courts  have  enforced  the  rule  of  revocation  pro  tanto  in  the  interest 
of  the  child:  Waterman  v.  Hawkins,  63  Me.  156;  Walker  v.  Hall, 
34  Pa.  483;  Hollingsworth's  Appeal,  51  Pa.  518.  In  the  first  the 
testator  left  certain  real  and  personal  estate  to  his  widow  during  her 
life  and  widowhood,  to  revert  to  his  heirs  upon  her  death  or  mar- 
riage, and  gave  the  rest  to  his  father.  A  daughter  born  two  months 
after  his  death  was  held  unprovided  for  by  the  will,  and  recovered 
the  share  of  the  estate  she  would  have  taken  if  he  had  died  intestate. 
In  the  second  the  testator  gave  his  entire  estate  to  his  wife,  saying 
in  the  will,  'Having  the  utmost  confidence  in  her  integrity,  and  be- 
lieving that,  should  a  child  be  born  to  us,  she  will  do  the  utmost  to 
rear  it  to  the  honor  and  glory  of  its  parents,' — and  the  same  ruling 
was  made.  In  the  last  case  the  will  in  terms  committed  any  after- 
born  child  to  the  guardianship  of  his  wife,  adding,  'Which  guardian- 
ship I  intend  and  consider  a  suitable  and  proper  provision  for  such 
child;'  and  still  a  similar  decision  was  pronounced.  Further  citations 
would  seem  unprofitable.  To  sum  the  matter  up,  the  common-law 
courts  of  England  finally  reached  the  conclusion  that  the  revocation 
was  absolute  upon  the  happening  of  marriage  and  birth  of  issue,  and 
not  dependent  upon  evidence  of  testator's  intention.  The  general 
tendency  of  statute  law  in  this  country  is  in  the  same  direction,  and 
courts,  as  a  rule,  have  carefully  protected  the  rights  of  after-born  chil- 
dren. The  language  of  the  statute  is  plain  and  unambiguous.  The 
will  makes  no  provision  for  this  child,  does  not  mention  or  refer  to 
her,  and  on  its  face  manifests  no  intention  that  she  should  be  unpro- 
vided for.  Hence  it  must  be  held  that  she  takes  the  same  share  in  the 
estate  which  she  would  have  taken  had  her  father  died  intestate,  to 
wit,  one-half." 

In  passing  this  statute,  the  legislature  required,  if  the  father  in- 
tended to  disinherit  the  unborn  child,  he  should  indicate  it  in  his 
will,  and  that  it  should  not  be  left  to  extraneous  testimony  to  show  his 
intent. 

The  decree  of  the  court  below  as  to  Harry  Snow  and  Gertrude 
Snow  is  reversed,  and  a  decree  will  be  entered  here  giving  to  them  the 
same  interest  they  would  have  in  the  property  if  the  father  had  died 


154  REVOCATION   AND    REPUBLICATION    OF   WILLS 

intestate.  As  to  Clara  L.  Snow,  the  decree  will  be  without  prejudice 
to  take  proceedings  at  law  to  decide  whether  the  omission  to  make 
provision  for  her  was  intentional.  As  all  the  parties  were  interested 
in  the  construction  of  this  will,  the  costs  should  be  paid  out  of  the 
estate.  The  other  justices  concurred. 


L  (B)  Divorce9 

/ 

In  re  JONES'  ESTATE. 

(Supreme  Court  of  Pennsylvania,  1905.    211  Pa.  364,  60  Atl.  915,  69  L.  R.  A. 
940,  107  Am.  St.  Rep.  581,  3  Ann.   Gas.  221.) 

POTTER,  J.7  The  questions  presented  by  this  appeal,  as  stated  by 
:he  appellant,  are:  (1)  Does  a  legacy  in  these  words:  "one-third  to 
my  wife,  Mary  Brown  Jones,"  lapse  when  the  wife,  subsequent  to  the 
date  of  the  will,  at  her  own  instance,  obtains  a  divorce  a  vinculo  matri- 
monii?  (2)  Is  a  bequest  "to  my  wife,  Mary  Brown  Jones,"  revoked  by 
implication  by  reason  of  absolute  divorce?  We  take  up  these  questions 
in  order.  *  *  * 

But,  turning  to  the  second  question  presented  here,  it  is  elaborately 
argued  that  as  matter  of  law  the  bequest  to  Mary  Brown  Jones  was  im- 
pliedly  revoked  by  reason  of  the  divorce.  No  authority  has  been  cited 
in  support  of  the  proposition  that  divorce  in  itself  is  sufficient  to  work 
a  revocation  of  a  will,  and  we  are  not  aware  that  any  exists.  The  only 
case  which  has  been  cited  by  counsel  as  sustaining  this  position  is  Lans- 
ing v.  Haynes,  95  Mich.  16,  54  N.  W.  699,  35  Am.  St.  Rep.  545.  But 
examination  shows  that  the  Michigan  statute  allows  the  court  to  de- 
termine whether  the  subsequent  changes  in  the  condition  or  circum- 
stances of  the  testator  are  sufficient  to  work  an  implied  revocation  of 
the  will.  And  the  decision  in  that  case  rested  also  upon  the  fact  that 
pending  the  divorce  proceeding  there  was  a  settlement  of  the  property 
rights  of  the  parties.  A  division  of  the  real  estate  was  made,  each 
deeding  to  the  other.  An  agreement  was  also  made  by  which  the  hus- 
band conveyed  to  the  wife  certain  personal  property,  and  she  agreed  to 
release  him  from  all  demands  of  every  kind  or  nature.  The  agreement 
stated  that  it  and  the  deeds  executed  by  them  were  intended  as  a  prop- 
erty settlement  between  them.  This  was  a  practical  satisfaction  of  the 
bequest,  and  amounted  to  an  ademption. 

As  we  read  this  decision,  it  was  controlled  by  the  fact  of  the  settle- 
ment of  property  rights  between  the  parties,  and  not  by  the  divorce  it- 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  87,  88. 
7  The  statement  of  facts  is  omitted  and  only  that  part  of  the  opinion  is 
given  which  deals  with  the  question  of  revocation. 


REVOCATION  155 

self.  At  common  law  the  doctrine  of  implied  revocation  of  a  will  from 
change  of  circumstances  did  not  include  divorce.  In  fact,  the  instances 
were  few  under  the  common  law  in  which  an  alteration  of  circumstanc- 
es was  held  sufficient  to  justify  an  implied  revocation.  Both  at  common 
law  and  under  the  statutes  of  most  of  the  states,  it  is  only  certain  defi- 
nite changes  in  the  condition  or  family  relations  of  the  testator  which 
impliedly  revoke  a  will  executed  before  such  changes.  The  great 
weight  of  authority  is  that  no  changes  beyond  the  few  which  have  been 
many  times  specifically  enumerated  and  recognized  as  sufficient  for 
the  purpose,  can  have  this  effect.  Page  on  Wills,  §  280.  A  will  may  be 
so  easily  revoked  by  the  testator  in  his  lifetime  that  the  courts  have 
been  slow  in  permitting  changes  in  circumstances  to  do  by  implication 
what  the  testator  may  so  readily  do  for  himself.  In  Wogan  v.  Small, 
11  Serg.  &  R.  141,  Tilghman,  C.  J.,  said:  "There  is  one  case,  and 
only  one,  in  which  it  has  hitherto  been  thought  proper  to  decide  that 
the  revocation  of  a  will  might  be  implied  from  an  alteration  of  circum- 
stances, and  that  is,  when  the  testator  married  and  had  a  child  subse- 
quently to  the  making  of  his  will ;  but  both  circumstances  must  concur. 
*  *  *  The  danger  of  this  principle  of  implied  revocation  is  very 
great,  and  that  is  the  reason  why,  although  very  strong  cases  of  hard- 
ship have  occurred,  the  judges  have  never  ventured  to  advance  beyond 
that  one  step.  We  have  the  less  reason  to  resort  to  implied  revocation 
as  our  legislation  has  provided  for  the  case  of  subsequent  marriage  or 
children  by  the  act  of  April  19,  1794  (3  Smith's  Laws,  p.  143).  *  *  * 
Once  establish  the  judicial  habit  of  examining  the  situation  of  a  man's 
fortune  or  family  and  revoking  his  will  because  he  has  made  an  absurd 
or  an  inhuman  disposition  of  his  property,  or  because  we  merely  sup- 
pose he  was  ignorant  of  the  state  of  his  affairs  or  of  the  law,  and  no 
man's  will  is  safe."  These  words  were  weighty  then;  they  should  be 
equally  so  now. 

The  opening  sentences  in  Marshall  v.  Marshall,  11  Pa.  430,  are 
obiter  dicta,  for  there  was  no  occasion  in  that  case  to  consider  the  ques- 
tion of  what  was  sufficient  to  justify  an  implied  revocation  of  a  will. 
That  subject  was  not  before  the  court.  The  testator  in  that  case,  after 
devising  one  tract  of  land  to  one  son  and  another  tract  of  land  to  an- 
other son,  subsequently  sold  the  first  tract.  It  was  urged  that  this 
would  work  a  revocation  of  the  whole  will.  But  the  court  decided  that 
the  sale  affected  only  the  devise  of  the  tract  in  question,  and  the  resi- 
due of  the  will  remained  in  full  force.  It  was  a  case  of  ademption, 
which  applies  only  to  the  subject-matter  of  testamentary  disposition. 
When  the  subject-matter  bequeathed  is  sold,  or  disposed  of,  it  is  there- 
by completely  extinguished,  and  nothing  remains  to  which  the  words  of 
the  will  can  apply.  The  principle  of  ademption  is  entirely  distinct  from 
that  of  an  implied  revocation  of  the  terms  of  the  will.  Ademption  has 
to  do  with  the  subject-matter  of  the  bequests,  while  the  doctrine  of  im- 
plied revocation  is  founded  upon  a  presumed  neglect  of  duty  upon 
the  part  of  the  testator,  or  upon  a  change  in  his  family  relations. 


156  REVOCATION    AND    REPUBLICATION    OF    WILLS 

Ademption  involves  action  upon  the  part  of  the  testator ;  the  doing  of 
some  act  with  regard  to  the  subject-matter  which  interferes  with  the  op- 
eration of  the  words  of  the  will.  That  is,  he  anticipates  the  gift  there 
made  by  bestowing  it  during  his  lifetime  upon  the  legatee,  or  disposes 
of  the  subject-matter  in  some  way  which  puts  it  out  of  the  question  to 
follow  his  directions  as  set  forth  in  the  will.  Nothing  of  that  kind  has 
been  done  in  the  present  case.  The  testator  has  not  interfered  with 
his  estate  in  any  way  inconsistent  with  the  terms  of  his  will. 

The  statutory  rules  in  Pennsylvania  as  to  the  revocation  of  wills  are 
reviewed  by  Read,  J.,  in  Walker  v.  Hall,  34  Pa.  483,  and  on  page  487 
he  says,  "We  have  in  reality  substituted  for  the  common-law  rule  one 
of  our  own,  depending  entirely  upon  our  statutory  enactments,"  and 
he  concludes  with  the  statement  that  our  rules  are  not  open  to  the  doc- 
trine of  implied  presumption.  In  Young's  Appeal,  39  Pa.  115,  80  Am. 
Dec.  513,  the  court  held  that  the  testamentary  paper  was  executed  un- 
der a  special  power,  and  not  under  the  statute  of  wills.  Whatever  is 
there  said  as  to  a  change  in  circumstances  which  create  new  moral  du- 
ties amounting  to  implied  revocation  is  obiter  dicta  in  so  far  as  it  goes 
beyond  the  conditions  enumerated  in  the  statutory  enactments.  The 
decision  was  that  the  will  was  revoked  by  the  birth  of  a  son  to  testatrix 
after  the  making  of  the  will.  While  it  was  the  disposition  of  an  equi- 
table estate,  yet  it  followed  the  principle  of  the  statute. 

We  are  by  no  means  singular  in  holding  to  the  doctrine  that  the 
changed  condition  of  the  testator  must  be  within  the  conditions  named 
in  the  statutes,  for  this  view  prevails  largely  in  other  states.  For  in- 
stance, in  Re  Comassi's  Estate,  107  Cal.  1,  40  Pac.  15,  28  L.  R.  A.  414, 
it  is  said :  "In  order  to  determine  whether  a  will  has  been  properly  ex- 
ecuted or  revoked,  or  whether,  after  its  execution,  there  has  been  such 
a  change  in  the  status  or  personal  relations  of  the  testator  as  in  law  will 
effect  its  revocation,  we  have  only  to  determine  whether  the  changed 
condition  of  the  testator  is  within  the  condition  named  in  the  statute. 
[Cites  Code.]  *  *  *  The  effect  of  these  provisions  is  to  do  away 
with  the  doctrine  of  implied  revocation,  which  was  for  so  many  years  a 
subject  of  controversy  in  the  English  courts,  and  which  in  many  of  the 
states  of  this  country  is  still  permitted  under  a  clause  in  their  statutes, 
authorizing  a  revocation  to  be  'implied  by  law  for  subsequent  changes 
in  the  condition  of  the  testator.' "  And  in  Davis  v.  Fogle,  124  Ind. 
41,  23  N.  E.  860,  7  L-  R.  A.  485 :  "It  is  manifest  that  no  act,  thing,  or 
deed  will  revoke  a  will  once  duly  executed,  unless  it  comes  within  the 
provisions  of  the  statute  providing  for  the  revocation  of  wills."  In 
Noyes  v.  Southworth,  55  Mich.  173,  20  N.  W.  891,  54  Am.  Rep.  359, 
the  court  says :  "There  is  no  sound  reason  that  we  can  perceive  why, 
in  the  absence  of  statutes,  implied  revocation  should  be  extended." 
And  in  Schouler  on  Wills,  §  427,  it  is  said:  "In  short,  revocation  of  a 
particular  will  by  mere  inference  of  law  or  presumption  is  limited  to  a 
very  few  instances  in  our  modern  practice.  Modern  legislation  itself 
repudiates  in  England  and  some  of  our  states  the  old  theory  of  implied 


REVOCATION  157 

intention  to  revoke  on  the  ground  of  alteration  of  circumstances,  and 
what  is  left  of  that  theory  aside  from  such  statutes  it  would  be  very 
difficult  to  say."  A  case  much  like  the  present  is  Card  v.  Alexander, 
48  Conn.  492,  40  Am.  Rep.  187.  There  the  bequest  was  to  "my  wife 
Amelia."  A  year  and  a  half  after  the  execution  of  the  will  the  testa- 
tor obtained  a  divorce  from  his  wife  for  her  misconduct,  and  four  years 
afterwards  died,  without  changing  his  will.  It  was  held  that  the  be- 
quest was  not  to  be  regarded  as  conditioned  upon  the  wife  continuing 
to  be  such  until  his  death,  and  that  the  divorce  did  not,  as  matter  of 
law,  impliedly  revoke  the  will.  The  circumstances  of  the  divorce  in 
that  case  spoke  more  strongly  against  the  claimant  than  here.  In  the 
present  case  it  was  the  misconduct  of  the  testator  which  caused  the 
divorce. 

We  can  see  nothing  in  the  facts  of  this  case  which  would  justify  any 
extension  of  the  doctrine  of  implied  revocation.  The  reason  which  lies 
behind  the  doctrine  as  denned  both  in  the  common  law  and  by  the  stat- 
utes is  that  some  obvious  injustice  may  be  prevented;  that  some  moral 
duty,  which  has  been  overlooked,  it  is  presumed,  by  the  testator,  may 
be  discharged.  What  would  be  the  result  of  holding  in  this  case  that 
the  change  in  circumstances  worked  a  revocation?  Only  this:  the 
whole  estate  of  testator  would  go  to  his  son,  to  the  entire  exclusion 
therefrom  of  his  former  wife  and  the  mother  of  his  child.  Can  it  be 
said  that  the  obtaining  by  the  wife  of  a  divorce  by  reason  of  the  mis- 
conduct of  the  testator  entailed  upon  him  any  moral  duty  to  destroy 
the  provision  which  he  had  made  in  his  will  for  the  woman  who  was 
for  years  his  faithful  wife,  in  order  to  pile  up  far  more  than  a  compe- 
tency for  their  child?  The  only  inference  which  can  be  drawn  from 
the  record  in  this  case  is  that  the  testator,  and  he  alone,  was  responsi- 
ble for  the  rupture  of  the  marital  ties.  It  may  well  be,  then,  that  by  the 
provision  in  his  will  he  intended  to  make  some  reparation  for  the  sor- 
row and  distress  he  brought  upon  his  wife.  To  impute  to  him  such  in- 
tention would  be  more  kind  than  to  presume,  as  is  urged  in  the  argu- 
ment, that  he  was  filled  with  resentment,  and  became  possessed  by  an 
ignoble  purpose  which  he  failed  to  carry  out.  He  must  have  known 
that  he  could  change  or  destroy  his  will  at  any  time;  yet  he  did  not 
do  so. 

We  agree  with  the  conclusions  reached  and  stated  by  the  auditing 
judge  in  his  careful  and  able  opinion  that  "to  hold  under  the  facts  in 
this  case  that  the  divorce  revoked  this  bequest  would  not  be  in  accord- 
ance with  statutory  regulations,  and  would  be  extending  the  doctrine  o-f 
an  implied  revocation  beyond  any  authoritative  adjudication,  and  would 
be  contrary  to  the  express  and  implied  intention  of  the  testator."  Ap- 
peal dismissed. 

MITCHELL,  C.  J.,  dissents. 


158         REVOCATION  AND  REPUBLICATION  OF  WILLS 


5.  PRESUMPTION  WHEN  WILL  NOT  FOUND  • 


COLLYER  v.  COLLYER. 

(Court  of  Appeals  of  New  York,  1888.     110  N.  Y.  481,  18  N.  E.  110,  6  Am. 

St   Rep.  405.) 

EARL,  J.  Elizabeth  Collyer  died  in  Westchester  county  on  the  4th 
day  of  March,  1883,  possessed  of  a  considerable  estate.  George  B. 
Collyer,  claiming  that  she  had  made  a  will  devising  and  bequeathing 
all  her  estate  to  him,  and  appointing  him  the  sole  executor  thereof,  and 
alleging  that  the  will  had  been  fraudulently  destroyed,  instituted  this 
proceeding  in  the  surrogate's  court,  under  section  2621  of  the  Code,  to 
establish  the  will.  The  administrator  and  next  of  kin  and  heirs  of  the 
deceased  were  made  parties  to  the  proceeding,  and  they  opposed  and 
contested  probate  of  the  will.  The  petitioner,  George  B.  Collyer,  gave 
evidence  tending  to  show  that,  in  1863,  the  deceased  made  such  a  will 
as  he  claims;  that  she  left  the  will  in  the  custody  of  the  lawyer  who 
drew  it  until  about  the  year  1877,  when  she  took  the  will  into  her  own 
possession,  and  soon  thereafter  exhibited  a  folded  paper,  which  she 
claimed  was  her  will.  Witnesses  were  called  on  behalf  of  the  petition- 
er, who  testified  to  declarations  made  by  the  deceased  at  various  times, 
but  not  later  than  seven  months  prior  to  her  decease,  to  the  effect  that 
she  had  made  a  will  giving  all  of  her  estate  to  her  brother  George ;  and 
witnesses  were  called  on  behalf  of  the  contestants  who  testified  to  dec- 
larations made  by  her  in  the  years  1882  and  1883,  the  last  in  February 
of  the  latter  year,  to  the  effect  that  she  was  displeased  with  the  treat- 
ment received  by  her  from  her  brother  George ;  that  she  had  changed  her 
intention  in  reference  to  him,  and  had  destroyed  her  will.  Upon  all  the 
evidence  the  surrogate  found,  as  matter  of  fact,  that  there  was  a  want 
of  sufficient  legal  proof  that  the  deceased  ever  executed  a  will;  that 
there  was  a  want  of  sufficient  legal  proof  of  the  contents  of  any  will ; 
that  at  the  time  of  her  death  she  left  no  will  in  existence,  and  that  no 
will  of  hers  was  fraudulently  destroyed  in  her  life-time ;  and  he  held, 
as  matter  of  law,  that  the  alleged  will  should  not  be  established  or  ad- 
mitted to  probate  as  a  lost  or  destroyed  will ;  and  that  the  deceased  died 
intestate.  The  decision  of  the  surrogate  was  affirmed  at  the  general 
term  upon  the  ground,  as  appears  from  the  opinion  there  pronounced, 
that  there  was  not  sufficient  proof  that  the  alleged  will  was  in  exist- 
ence at  the  time  of  the  decease  of  Mrs.  Collyer,  or  that  it  was  fraudu- 
lently destroyed  in  her  life-time. 

\\ithout  passing  upon  the  other  grounds  upon  which  the  surrogate 
based  his  decision,  we  agree  with  the  general  term.  It  is  provided  in 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  89. 


REVOCATION  159 

the  Revised  Statutes  (2  Rev.  St.  pt.  2,  c.  6,  tit.  1,  art.  3,  §  42)  as  follows : 
"No  will,  except  in  the  cases  hereinafter  mentioned,  nor  any  part,  shall 
be  revoked  or  altered,  otherwise  than  by  some  other  will  in  writing,  or 
some  other  writing  of  the  testator  declaring  such  revocation  or  altera- 
tion, and  executed  with  the  same  formalities  with  which  the  will  itself 
was  required  by  law  to  be  executed ;  or  unless  such  will  be  burnt,  torn, 
canceled,  obliterated,  or  destroyed,  with  the  intent  and  for  the  purpose 
of  revoking  the  same,  by  the  testator  himself,  or  by  another  person  in 
his  presence,  by  his  direction  or  consent ;  and  when  so  done  by  another 
person  the  direction  and  consent  of  the  testator,  and  the  fact  of  such 
injury  or  destruction,  shall  be  proved  by  at  least  two  witnesses."  The 
claim  of  the  petitioner  is  that  the  will  of  Mrs.  Collyer  was  not  destroy- 
ed by  herself,  but  by  some  other  person,  without  her  knowledge  or  con- 
sent. This  claim  is  wholly  unsupported  by  proof.  No  witness  was 
called  who  had  seen  the  will  since  1877,  and  there  is  no  evidence  what- 
ever that  the  will  was  in  existence  during  the  last  seven  months  of  her 
life,  and  the  most  diligent  search  failed  to  disclose  any  trace  of  it  after 
death.  The  evidence  simply  shows  that  several  of  her  next  of  kin  were 
about  her  for  a  short  time  before  her  death,  and  in  her  house  after- 
wards, and  thus  may  have  had  opportunity  to  find  and  destroy  the  will. 
But  all  such  persons  were  called  as  witnesses,  and  positively  denied  any 
knowledge  of  the  will,  or  any  interference  therewith,  and  thus  there 
was  not  enough  evidence  even  to  raise  a  fair  suspicion  that  the  will  had 
been  fraudulently  destroyed. 

There  is  no  direct  proof  that  Mrs.  Collyer  destroyed  her  will.  But 
the  proof  that  the  will  was  not  found  after  her  death  is  sufficient  proof 
that  she  destroyed  it  animo  revocandi.  When  a  will  previously  ex- 
ecuted cannot  be  found  after  the  death  of  the  testator,  there  is  a  strong 
presumption  that  it  was  revoked  by  destruction  by  the  testator,  and  this 
presumption  stands  in  the  place  of  positive  proof.  Betts  v.  Jackson,  6 
Wend.  173;  Knapp  v.  Knapp,  10  N.  Y.  276;  Schultz  v.  Schultz,  35  N. 
Y.  653,  91  Am.  Dec.  88;  Hatch  v.  Sigman,  1  Dem.  Sur.  519.  He  who 
seeks  to  establish  a  lost  or  destroyed  will  assumes  the  burden  of  over- 
coming this  presumption  by  adequate  proof.  It  is  not  sufficient  for  him 
to  show  that  persons  interested  to  establish  intestacy  had  an  opportunity 
to  destroy  the  will.  He  must  go  further,  and  show,  by  facts  and  cir- 
cumstances, that  the  will  was  actually  fraudulently  destroyed.  In 
Loxley  v.  Jackson,  3  Phil.  Ecc.  126,  the  will  was  last  seen  in  a  small 
box  in  the  bedroom  of  the  deceased,  but  was  not  found  after  her  death ; 
and  it  was  held  that  the  presumption  of  law  was  that  the  testatrix  de- 
stroyed it  animo  revocandi,  that  the  law  did  not  presume  fraud,  and 
that  the  burden  of  proof  was  on  the  party  claiming  under  the  will.  In 
Betts  v.  Jackson,  supra,  a  will  was  duly  executed,  and  in  the  custody  of 
the  testator  for  five  years  afterwards,  and  within  10  months  previous  to- 
his  decease,  but  could  not  be  found  after  his  decease ;  and  it  was  held 
that  the  legal  presumption  was  that  tl;e  testator  had  destroyed  it  animo 
revocandi,  although  it  appeared  that  within  a  fortnight  before  his  death 


160  REVOCATION    AND    REPUBLICATION    OF    WILLS 

he  applied  to  a  scrivener,  who  had  drawn  a  codicil,  to  draw  another 
codicil  to  his  will,  which,  however,  was  not  drawn,  nor  was  the  will 
at  the  time  produced  to  the  scrivener.  In  Knapp  v.  Knapp,  supra,  it 
was  held  that  proof  that  a  will  executed  by  a  deceased  person  was  said 
by  him  a  month  previous  to  his  death  to  be  in  his  possession  in  a  certain 
desk  at  his  house;  that  he  was  then  very  aged  and  feeble;  that  his 
housekeeper  was  a  daughter  having  an  interest  adverse  to  the  will ;  and 
that  the  same  could  not  be  found  on  proper  search  three  days  after  his 
death, — is  not  sufficient  evidence  of  its  existence  at  the  testator's  death, 
or  of  a  fraudulent  destruction  in  his  life-time,  to  authorize  parol  proof 
of  its  contents.  The  authorities  are  uniform,  and  no  further  citations 
are  needed. 

As  the  evidence  on  the  part  of  the  petitioner  wholly  failed  to  make 
out  his  case,  he  was  not  harmed  by  any  of  the  evidence  offered  and  re- 
ceived on  behalf  of  the  contestants  to  which  he  makes  objection,  and 
such  objections  need  not,  therefore,  be  considered.9  *  *  *  Af- 
firmed. 


II.  Republication 
1.  BY  CoDiciL10 


In  re  CAMPBELL'S  WILL. 
(Court  of  Appeals  of  New  York,  1902.    170  N.  Y.  84,  62  N.  E.  1070.) 

GRAY,  J.  This  was  a  proceeding  for  the  probate  of  a  will  and  of  a 
codicil  of  Ellen  Campbell,  deceased,  and  it  therein  appeared  that  she 
had  executed  at  different  times,  and  there  were  existent,  two  wills  and 
a  codicil.  On  July  6,  1897,  one  will  was  executed ;  on  July  19,  1899, 
another  will  was  executed;  and  on  December  7,  1900,  an  instrument 
was  executed  by  the  testatrix  which  declared  itself  to  be  a  "codicil  to 
the  last  will  and  testament  of  Miss  Ellen  Campbell,  which  will  bears 
date  July  6,  1897."  The  will  of  1899  modified  or  changed  the  provi- 
sions of  the  will  of  July,  1897,  in  respects  relating  to  legacies  given, 
and  in  giving  new  legacies.  •  Each  of  these  wills  was  executed  with  the 
requisite  statutory  formalities,  and  contained  the  usual  revocation 
clause.  The  codicil  of  1900  modified  some  provisions  of  the  will  of 
1897,  expressly  revoked  others,  and  added  some  legacies.  It  made  no 
reference  to  the  will  of  1899.  The  will  of  1897  and  the  codicil  thereto 
of  1900  were  admitted  by  the  surrogate  to  probate,  as  constituting  the 
last  will  and  testament  of  the  deceased,  while  the  will  of  1899  was  re- 
fused probate,  as  having  been  revoked.  The  conclusions  of  the  sur- 

»  The  remainder  of  the  opinion  dealing  with  the  question  of  costs  is  omitted. 
10  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  90-92. 


KEPUBLICATION  161 

rogate  in  those  respects  were  unanimously  affirmed  by  the  appellate 
division,  and  the  Home  for  Aged  Men,  a  legatee  under  the  will  of  1899, 
appeals  to  this  court  from  the  decision  below. 

Although  it  is  found  as  a  fact  by  the  learned  surrogate  that  the  testa- 
trix, by  the  execution  of  the  codicil  in  1900,  republished  her  will  of 
July,  1897,  nevertheless  the  finding  is,  in  its  nature,  a  legal  conclusion 
from  the  facts,  and  the  question  of  law  is  in  the  case.  It  is  contended 
on  the  part  of  the  appellant  that  the  statutory  provisions  with  respect 
to  the  destruction,  cancellation,  and  revocation  of  a  will  are  applicable 
to  the  present  case.  2  Rev.  St.  pt.  2,  c.  6,  tit.  1,  art.  3,  §  53.  They 
clearly  are  not.  Whether  the  earlier  will  was  revived  by  the  destruc- 
tion of  a  later  will  is  not  the  question ;  nor  does  the  validity  of  testa- 
trix's action  with  respect  to  the  prior  will  depend  upon  verbal  declara- 
tions, as  in  Re  S'tickney's  Will,  161  N.  Y.  42,  55  N.  E.  396,  76  Am.  St. 
Rep.  246.  The  question  is  whether  the  execution  by  the  testatrix  of 
the  codicil  revived  and  republished  the  earlier  will  of  1897, — a  com- 
pletely executed  and  existent  instrument, — so  that  the  two  instruments, 
together,  constituted  the  final  testamentary  disposition  of  her  estate. 
That  such  is  generally  the  effect  of  a  codicil,  and  that  the  will  thereby 
republished  speaks  from  the  date  of  the  codicil,  is  a  proposition  settled 
upon  authority.  Van  Cortlandt  v.  Kip,  1  Hill,  590;  Brown  v.  Clark, 
77  N.  Y.  369;  In  re  Conway,  124  N.  Y.  455,  26  N.  E.  1028,  11  L.  R. 
A.  796.  That  there  intervenes,  between  the  will  referred  to  in  the  codi- 
cil and  the  codicil  itself,  another  will,  executed  by  the  testatrix,  and  in 
terms  revoking  other  wills,  does  not  affect  the  result,  because  the  codicil 
to  the  earlier  will  implies  its  existence,  and  effects,  impliedly,  if  not 
expressly,  the  revocation  of  the  intermediate  will.  Of  course,  there 
can  be  no  question  that  the  purpose  of  the  testatrix  was  to  re-establish 
her  earlier  will;  for  the  title  given  to  the  instrument,  its  subject-mat- 
ter, and  the  circumstances  of  its  preparation,  with  the  will  before  her, 
clearly  indicate  it.  Equally  clear,  too,  should  it  be  that  the  testatrix 
purposed  the  abandonment  of  her  second  will.  There  is  no  reason  in 
the  law  why  her  manifest  purpose  should  not  be  given  effect.  The 
object  of  the  statute  of  wills  is  to  effectuate  that  which  is  prov,ed  to  be 
the  last  will  of  a  deceased  person.  To  that  end,  it  prescribes  certain 
formalities  of  execution,  whereby  the  possibility  of  imposition  or  of 
fraud  is  minimized.  When  a  codicil  is  executed  with  those  formalities, 
it  is  a  final  testamentary  disposition,  and  the  will  to  which  it  is  shown 
to  be  the  codicil,  if  itself  an  existent  and  a  completed  instrument,  ac- 
cording to  the  statute,  is  taken  up  and  incorporated,  so  that  the  two 
taken  together  are  deemed  to,  and  necessarily  do,  express  the  final  tes- 
tamentary intentions.  In  such  a  case  it  must  logically  and  manifestly 
follow  that  any  other  will  or  codicil  prior  in  date  to  the  codicil  in  pro- 
bate is  revoked,  and  the  presence  of  express  words  to  that  effect  in  the 
codicil  is  unnecessary.  See  1  Williams,  Ex'rs  (6th  Am.  Ed.)  pp.  251, 
252;  1  Jarm.  Wills  (5th  Am.  Ed.)  pp.  *114-191;  Brown  v.  Clark, 
DTJNM.CAS.  WILLS — 11 


1C2         REVOCATION  AND  REPUBLICATION  OF  WILLS 

supra;  In  re  Goods  of  Reynolds,  3  Prob.  &  Div.  35.  In  Brown  v. 
Clark,  a  married  woman  executed  a  codicil  which,  in  terms,  referred 
to  and  republished  a  will  executed  by  her  before  her  marriage ;  and  it 
was  held  that  it  effected  a  re-establishment  and  a  valid  publication  of 
the  will,  which  had  been  revoked  as  the  effect,  under  the  statute,  of  the 
marriage.  In  the  English  case  cited  (In  re  Goods  of  Reynolds),  a  will 
had  been  executed  in  1866,  and  a  codicil  to  it  in  1871.  Later,  in  1871, 
another  will  was  executed,  revoking  all  previous  wills  and  codicils.  In 
1872  a  codicil  was  executed,  entitled :  "This  is  a  Codicil  to  the  Will  of 
B.  R.,  Dated  May,  1866."  Probate  was  decreed  of  the  will  of  1866,  and 
of  the  codicil  of  1872,  by  which  it  had  been  revived.  The  codicil  of 
May,  1871,  was  held  not  to  be  revived,  as  there  was  nothing  to  show 
such  an  intention. 

I  think  the  judgment  below  is  right  and  that  it  should  be  affirmed, 
with  costs  to  the  respondents  the  Albany  Historical  and  Art  Society 
and  the  executors,  to  be  paid  out  of  the  estate. 

PARKER,  C.  J.,  and  BARTLETT,  HAIGHT,  CULLEN,  and  WERNER,  JJ., 
concur.  O'BRIEN,  J.,  not  voting. 

Judgment  affirmed. 


2.  CONSEQUENCES  OF  REPUBLICATION  Jt 


GREEN  v.  TRIBE. 

(High  Court  of  Justice,  Chancery  Division,  1878.    9  Ch.  Div.  231.) 

Elizabeth  Love,  by  her  will  dated  the  9th  of  February,  1872,  gave 
to  trustees  the  sum  of  £1,000  upon  trust  to  invest  the  same,  and  to 
pay  the  income  to  her  niece,  Ellen  Love,  during  her  life,  and  after  her 
decease  upon  trust  for  her  children  as  therein  mentioned.  And  the  tes- 
tatrix devised  her  residuary  real  estate  to  trustees  on  trust  for  sale,  and 
gave  to  the  same  trustees  the  residue  of  her  personal  estate,  and  the 
proceeds  of  the  sale  of  her  said  real  estate,  upon  trust  as  to  two  six- 
teenths thereof  to  pay  the  same  unto  her  nephew  Stephen  Love,  and 
as  to  two  other  sixteenths  thereof  upon  such  trusts  for  the  benefit  of 
her  niece  Ellen  Love  and  her  issue  as  were  therein  declared  of  the 
said  sum  £1,000  bequeathed  for  her  benefit. 

Elizabeth  Love  made  a  codicil  dated  the  27th  of  August,  1872,  as 
follows :  "This  is  a  codicil  to  the  last  will  and  testament  of  me,  Eliza- 
beth Love,  of  Filstone,  in  the  parish  of  Shoreham,  in  the  county  of 
Kent,  spinster,  which  will  bears  date  the  9th  of  February,  1872.  I  do 
hereby  revoke  and  make  void  every  gift,  devise,  appointment  and  be- 
quest made  by  me  in  and  by  my  said  will  to  or  in  favor  of  my  niece 

11  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  90-92. 


EEPUBLICATION  1C3 

Ellen  Love  and  my  nephew  Stephen  Love  respectively.  I  confirm  my 
said  will  in  all  other  respects." 

Elizabeth  Love  made  a  second  codicil  dated  the  14th  of  April,  1873, 
as  follows :  "This  is  a  codicil  to  the  last  will  and  testament  of  me, 
Elizabeth  Love,  of  the  parish  of  Shoreham,  in  the  county  of  Kent, 
spinster.  Whereas  since  the  date  of  my  said  will  I  have  purchased  two 
messuages  with  the  outbuildings,  gardens,  and  premises  thereto  belong- 
ing, situate  and  being  Nos.  5  and  6,  Camden  Villa,  London  Road,  in  the 
parish  of  Sevenoaks,  in  the  county  of  Kent.  And  I  have  contracted  to 
purchase  two  other  messuages  with  the  outbuildings,  gardens,  and 
premises  thereto  belonging,  situate  and  being  Nos.  9  and  10  Granville 
Road,  in  the  said  parish  of  Sevenoaks,  but  the  purchase  whereof  has 
not  yet  been  completed.  Now  I  devise  the  said  four  messuages  and 
premises  respectively,  with  the  appurtenances  and  all  other  the  real 
estate,  if  any,  which  I  have  acquired  or  contracted  to  purchase  since 
the  date  of  my  said  will  unto  my  brother  Samuel  Love,  my  brother-in- 
law  John  Tribe,  my  nephew  Frank  Green,  and  William  Francis  Hoi- 
croft,  the  trustees  and  the  executors  named  in  my  said  will,  and  to 
their  heirs,  to,  upon,  and  for  the  several  uses,  trusts,  intents,  and  pur- 
poses in  my  said  will  expressed  and  contained  of  and  concerning  my 
residuary  real  estate  (other  than  the  messuage,  cottage,  and  premises 
thereby  devised  to  my  said  brother  Samuel  Love  for  his  life  as  therein 
mentioned).  And  I  declare  that  the  produce  of  the  sales  of  the  mes- 
suages and  hereditaments  hereby  devised  as  aforesaid  shall  fall  into  and 
form  part  of  my  residuary  and  personal  estate  thereby  bequeathed  and 
shall  be  divided  in  the  same  proportions  and  for  the  benefit  of  the  same 
parties  as  in  my  will  is  expressed  and  declared  of  and  concerning  my 
said  residuary  personal  estate,  and  that  each  share  respectively  shall  be 
subject  to  the  same  trusts,  restrictions,  and  limitations  over  in  all  re- 
spects as  the  original  share  thereby  bequeathed,  and  as  if  the  share 
hereby  bequeathed  had  actually  formed  part  of  my  said  residuary  per- 
sonal estate  disposed  of  by  my  said  will.  In  other  respects  I  confirm 
my  said  will." 

Elizabeth  Love  died  in  September,  1873,  and  this  action  was  brought 
for  the  administration  of  her  estate.  Two  of  the  questions  argued  on 
the  hearing  were,  whether  the  second  codicil  revoked  the  first  codicil ; 
and  if  not,  whether  the  messuages  comprised  in  the  second  codicil  would 
go  according  to  the  terms  of  the  residuary  devise  in  the  will  alone,  in 
which  case  Stephen  Love  and  Ellen  Love  would  take  each  two  six- 
teenths, or  would  go  according  to  the  will  and  first  codicil  together,  in 
which  case  Stephen  Love  and  Ellen  Love  would  take  nothing. 

FRY,  J.  It  appears  from  the  statements  made  by  the  plaintiff,  which 
are  not  disputed  by  the  defendants,  that  the  purchase,  a  recital  of  which 
is  contained  in  the  second  codicil,  had  been  made  by  the  testatrix  after 
the  9th  of  February,  1872,  the  date  of  her  original  will,  but  before  the 
27th  of  August,  1872,  the  date  of  her  first  codicil.  This  being  so,  it 
appears  to  me  that  the  second  codicil  must  be  read  as  if  the  last  will 


164  REVOCATION    AND    REPUBLICATION    OF   WILLS 

and  testament  there  referred  to  had  been  described  by  its  proper  date, 
and  as  if  the  testatrix  had  declared  that  the  second  codicil  was  a  codicil 
to  her  last  will  and  testament  of  the  9th  of  February,  1872. 

Upon  this  state  of  facts  two  questions  have  been  raised  before  me : 
First,  did  the  second  codicil  revoke  the  first  codicil,  and  revive  the  origi- 
nal will  in  all  its  dispositions,  and  consequently  restore  Ellen  Love  and 
Stephen  Love  to  the  position  of  legatees  under  that  will?  Secondly,  if 
this  were  not  the  case,  was  the  real  estate  specifically  mentioned  in  the 
second  codicil  devised  upon  the  terms  of  the  original  will  unaffected  by 
the  second  codicil  ? 

Both  these  questions  must  be  determined  by  the  answer  to  a  third 
question,  which  is  this :  Assuming  a  testator  to  have  made  a  will,  to 
have  made  a  first  codicil  modifying  that  will,  to  have  made  a  second 
codicil  describing  his  will  by  the  date  which  the  original  instrument 
bore,  and  confirming  that  will,  but  observing  an  absolute  silence  with 
regard  to  the  first  codicil,  what  is  the  effect  of  the  second  codicil? 
Does  it  revive  the  first  will  as  it  originally  stood,  or  does  it  confirm  the 
original  will  as  modified  by  the  first  codicil  ? 

The  general  principle  I  take  to  be  clear.  On  the  one  hand,  where  a 
testator  in  a  codicil  uses  the  word  "will"  abstractedly  from  the  context, 
it  will  refer  to  all  antecedent  testamentary  dispositions  which  together 
make  the  will  of  the  testator,  and  consequently  where  the  testator  by  a 
codicil  confirms  in  general  terms  his  will  or  his  last  will  and  testament, 
the  will,  together  with  all  codicils,  is  taken  to  have  been  confirmed. 
"The  will  of  a  man,"  said  Lord  Penzance  in  Lemage  v.  Goodban,  Law 
Rep.  1  P.  &  M.  57,  "is  the  aggregate  of  his  testamentary  intentions  so 
far  as  they  are  manifested  in  writing,  duly  executed  according  to  the 
statute."  On  the  other  hand,  it  is  equally  clear  that  the  testator  may 
by  apt  words  express  his  intention  to  revoke  any  codicil  already  made, 
and  to  set  up  the  original  will  unaffected  by  any  codicil.  The  question, 
therefore,  which  I  have  to  consider  is,  whether  the  reference  to  the  date 
of  the  original  will  is  an  indication  of  the  intention  to  deprive  all  in- 
struments other  than  the  original  will  itself  of  any  force — in  fact, 
whether  such  a  reference  to  a  will  effects  a  revocation  of  the  antecedent 
codicils.  To  this  inquiry  a  series  of  cases  appears  to  afford  a  clear 
negative  answer. 

The  first  to  which  I  desire  to  refer  is  the  case  of  Crosbie  v.  Macdoual, 
4  Ves.  610.  There  the  testator  made  a  will  and  five  codicils,  and  a 
question  arose  as  to  the  effect  of  the  fifth  codicil  upon  the  fourth  codi- 
cil, by  which  certain  annuities  had  been  given.  The  fifth  codicil  recited 
the  making  of  the  will  and  the  date  which  it  bore,  substituted  one  exec- 
utor in  the  place  of  another,  was  silent  as  to  all  antecedent  codicils,  and 
concluded  by  confirming  the  testator's  said  will  in  all  other  respects. 
The  then  Master  of  the  Rolls  held  that  the  fourth  codicil  was  not  re- 
voked by  the  fifth.  This  decision  rested  upon  two  propositions.  The 
first,  that  if  a  man  ratifies  and  confirms  his  last  will  he  ratifies  and 
confirms  it  with  every  codicil  that  has  been  added  to  it  The  second, 


REPUBLICATION  1G5 

that  the  ratification  of  a  will  described  by  its  date  is  a  ratification  of 
the  will  as  modified  by  the  codicils,  and  therefore  does  not  revoke  the 
codicils  which  were  made  between  the  date  of  the  will  and  the  confirm- 
ing codicil. 

In  the  case  of  Smith  v.  Cunningham,  1  Add.  448,  a  similar  question 
arose.  There  the  testator  made  first  a  will,  then  five  codicils  in  suc- 
cession, then  a  sixth  codicil,  by  which  he  confirmed  and  republished  his 
will  and  two  codicils  describing  the  will,  and  two  codicils  by  the  dates 
which  they  respectively  bore,  and  it  was  held  that  the  sixth  codicil  did 
not  effect  a  revocation  of  the  three  unmentioned  codicils.  The  court 
held,  in  the  first  place,  that  the  intention  to  revoke  must  be  clear  and 
unequivocal;  in  the  second  place,  that  no  clear  inference  in  favor  of 
the  revocation  arose  from  the  language  of  the  sixth  codicil ;  and,  third- 
ly, that,  looking  at  all  the  circumstances  to  ascertain  the  intention  of 
the  testator  as  to  what  instruments  should  operate  as  and  compose  his 
last  will,  as  the  Court  of  Probate  was  in  the  habit  of  doing  (Greenough 
v.  Martin,  2  Add.  239),  there  was  no  intention  to  revoke. 

In  the  Goods  of  De  la  Saussaye,  Law  Rep.  3  P.  &  M.  42,  a  case 
which  came  before  Sir  James  Hannen  in  the  year  1873,  a  similar  point 
arose.  The  testator  there  first  made  a  will,  he  then  made  three  codicils 
in  Spain,  he  then  made  a  codicil  in  England  by  which  he  revoked  cer- 
tain dispositions  contained  in  his  will,  which  he  described  as  executed 
in  London  on  the  12th  of  March,  1869,  and  concluded  by  confirming  the 
dispositions  contained  in  his  will  of  the  12th  of  March,  1869,  in  what- 
ever did  not  clash  or  interfere  with  the  contents  of  that  codicil.  The 
question  arose  whether  the  express  reference  to  the  will  of  the  12th  of 
March,  1869,  implied  an  intention  on  the  part  of  the  testator  to  revoke 
his  Spanish  codicils.  The  court  held  that  it  did  not,  on  the  ground  that 
those  codicils  were  to  be  deemed  parts  of  the  will,  and  were  themselves 
confirmed  by  the  ratification  of  the  will  of  which  they  were  modifica- 
tions. 

In  each  of  the  cases  which  I  have  hitherto  considered,  as  well  as  in 
the  case  before  me,  the  earlier  codicil  in  question  had  a  force  of  its  own. 
It  must  prevail  unless  it  be  revoked  by  the  subsequent  codicil.  But 
there  is  a  class  of  cases  closely  akin  to  those  I  have  been  considering,, 
but  different  in  this  respect,  that  in  them  the  earlier  codicil  has  no  prop- 
er vigor  of  its  own,  but  derives  its  force,  if  at  all,  from  the  later  codicil. 
The  cases  of  the  latter  class  are  not  uniform.  First  in  point  of  date 
comes  Gordon  v.  Lord  Reay,  5  Sim.  274;  there  the  testator  made  a 
charge  on  real  estate  by  an  unattested  codicil,  and  by  a  subsequent 
codicil  referred  to  his  will  by  its  date,  and  confirmed  his  will ;  and  the 
Vice-Chancellor  of  England  held  that  the  first  codicil  was  a  part  of  the 
will,  that  the  second  codicil  was  a  republication  of  the  will,  and  conse- 
quently of  the  first  codicil  which  was  a  part  of  it.  In  the  case  of 
Aaron  v.  Aaron,  3  De  G.  &  S'm.  475,  the  testator  duly  made  a  will ;  he 
then  made  a  codicil  not  duly  attested  varying  the  dispositions  of  his 
will ;  he  then  duly  made  a  second  codicil  by  which  he  recited  that  he 


166  REVOCATION    AND    REPUBLICATION    OF   WILLS 

had  duly  made  and  executed  a  will  and  codicil,  describing  them  by  their 
respective  dates,  and  then,  after  certain  modifications  in  his  will,  rati- 
fied and  confirmed  his  "said  will"  in  all  other  particulars  thereof,  say- 
ing nothing  as  to  the  ratification  of  his  first  codicil.  The  court  held 
that  the  intention  of  the  second  codicil,  as  collected  from  the  whole  of 
it,  was  to  confirm  the  first  codicil  so  as  to  give  effect  to  it  as  if  it  had 
been  duly  attested  by  three  witnesses.  The  recital  of  the  first  codicil 
as  having  been  duly  executed  was  a  strong  circumstance  in  this  deci- 
sion. 

So  far  the  current  of  authority  seems  to  run  synoothly.  But  in  the 
recent  case  of  Burton  v.  Newbery,  1  Ch.  D.  234,  the  present  Master  of 
the  Rolls  took  a  different  view.  There  the  testator  made  a  will  before 
the  Wills  Act,  under  which  A.  and  B.  took  shares  of  the  proceeds  of 
his  real  estates.  By  a  codicil  made  after  the  Wills  Act,  he  devised  sub- 
sequently acquired  realty  on  the  trusts  of  his  will.  This  codicil  was 
attested  by  A.  and  B.,  who  consequently  were  incapable  of  taking  their 
shares  under  the  codicil.  By  a  second  codicil,  described  as  a  codicil 
to  his  will  dated  the  1st  of  April,  1839,  he  gave  a  pecuniary  legacy,  and 
said  nothing  as  to  his  first  codicil.  In  this  state  of  facts  the  Master  of 
the  Rolls  held  that  the  second  codicil  did  not  operate  as  a  republication 
of  the  first.  The  only  reference,  he  said,  was  to  a  will  bearing  date  a 
certain  day,  that  is,  as  I  understand  it,  to  a  described  instrument  which 
excludes  instruments  of  subsequent  dates.  It  appears  to  me  that  the 
Master  of  the  Rolls  intended  by  this  judgment  to  decide  only  that  where 
recourse  is  had  to  a  subsequent  codicil  to  give  vigor  to  an  earlier  one, 
a  mere  reference  to  the  will  by  its  date  will  not  operate  upon  the  earlier 
and  inoperative  codicil  so  as  to  set  it  up,  and  that  he  did  not  intend  (as 
has  been  argued  before  me)  to  lay  down  that  the  confirmation  of  a  will 
referred  to -by  its  date  would  revoke  a  pre-existing  and  valid  codicil. 
Accordingly,  I  find  him  dissenting  from  the  case  of  Gordon  v.  Lord 
Reay  [supra],  but  referring  without  disapproval  to  the  earlier  case  of 
Crosbie  v.  Macdoual  [supra]. 

The  two  classes  of  cases  differ  essentially.  In  the  one  the  earlier 
codicil  has  a  proper  force  of  its  own ;  in  the  other  the  earlier  codicil 
must,  if  left  to  itself,  fail.  In  the  one  class  the  question  is,  does  the 
later  codicil  revoke  the  earlier  and  operative  one ;  in  the  other  class  you 
inquire,  does  the  later  codicil  set  up  the  earlier  and  inoperative  one? 
To  the  one  class  of  cases  the  principle  applies  that  a  clear  disposition 
is  not  to  be  revoked  except  by  clear  words ;  to  the  other  class  this  prin- 
ciple has  no  application.  Doe  v.  Hicks,  8  Bing.  475;  Farrer  v.  St. 
Catherine's  College,  Law  Rep.  16  Eq.  19. 

I  conclude,  therefore,  that  the  decision  of  the  Master  of  the  Rolls  in 
Burton  v.  Newbery  does  not  touch  the  case  before  me,  and  was  not 
intended  to  touch  the  class  of  cases  to  which  it  belongs. 

The  case  of  Crosbie  v.  Macdoual  and  the  cases  which  have  followed 
it  appear  to  me  to  be  right  in  principle.  The  character  of  a  codicil  is 
very  peculiar.  Its  nature  is  not  substantive  but  adjective.  It  is,  as  Mr 


REPUBLICATION  1G7 

Justice  Blackstone  describes  it  (2  Bl.  Com.  [Kerr's  Ed.]  450),  "a  supple- 
ment to  a  will,  or  an  addition  made  by  the  testator,  and  annexed  to  and 
to  be  taken  as  part  of  a  testament."  A  reference  to  the  will  therefore 
in  itself  carries  with  it  a  reference  to  that  which  is  merely  a  supplement 
to  or  annexed  to  the  will  itself ;  and  the  mere  fact  that  the  testator  de- 
scribes the  will  by  a  reference  to  its  original  date,  does  not  seem  to  me 
sufficient  to  exclude  the  inference  that  the  will  referred  to  is  the  will  as 
modified  by  the  codicils. 

This  peculiar  character  of  codicils  is  well  illustrated  by  two  cases  in 
the  ecclesiastical  courts.  In  the  case  of  Wade  v.  Nazer,  1  Rob.  Ecc. 
627,  the  testator  executed  first  a  will  and  then  a  codicil  and  then  re- 
executed  his  will,  and  it  was  held  that  the  re-executed  will  took  effect 
subject  to  the  codicil,  on  the  ground  that  it  was  a  part  of  the  will  which 
was  so  re-executed.  In  the  case  of  Upfill  v.  Marshall,  3  Curt.  636,  the 
testator  made  a  will,  then  a  codicil,  altering  certain  of  its  dispositions, 
and  then  republished  his  will.  It  was  held  that  the  codicil  was  not  re- 
voked by  the  republication  of  the  original  will,  and  that  for  the  same 
reason  the  codicil  was  a  part  of  the  republished  will. 

One  other  argument  remains  for  consideration.  According  to  the 
construction  which  I  place  upon  the  second  codicil,  the  property  ex- 
pressed to  be  devised  by  it  passed  in  sixteen  shares  in  accordance  with 
the  will  of  the  testator.  I  cannot  yield  to  the  argument  pressed  upon 
me  that  even  if  the  first  codicil  was  not  revoked,  the  second  codicil 
passed  the  after- acquired  property  on  the  trusts  of  the  original  will.  If 
I  am  right  in  thus  holding,  the  codicil  operated  nothing,  unless  it  be 
held  to  have  restored  the  original  will  by  revoking  the  first  codicil,  in 
which  case  it  would  have  had  the  very  material  operation  of  restoring 
Ellen  Love  and  Stephen  Love  to  their  position  of  legatees.  The  codicil 
ought,  it  may  be  suggested,  to  be  construed  so  as  to  have  some  effect, 
and  there  being  no  other  effect  for  it,  it  ought  to  be  so  construed  as  to 
revoke  the  first  codicil,  and  thereby  admit  Ellen  Love  and  Stephen 
Love  to  the  benefit  of  the  original  dispositions  intended  for  them.  This 
argument  ought  not,  I  think,  to  prevail,  because  it  appears  to  me  to  be 
at  variance  with  the  expressed  intentions  of  the  testatrix.  She  recites 
in  the  codicil  the  circumstance  which  induced  her  to  execute  it,  namely, 
the  purchase  of  property  since  the  date  of  her  will,  and  the  contract 
for  purchase  of  other  properties.  She  appears  to  have  thought  that  this 
rendered  it  desirable  to  execute  a  codicil  to  her  will  but,  it  is  impossible 
to  suppose  that  if  the  real  object  had  been  to  restore  Ellen  Love  and 
Stephen  Love  to  their  original  position  as  legatees,  such  an  intention 
would  not  have  been  hinted  at  in  the  recitals  which  are  introduced  into 
the  second  codicil  for  the  very  purpose  of  explaining  its  object;  I  notice 
the  argument,  therefore,  only  for  the  purpose  of  rejecting  it. 

The  result  is,  that  in  my  judgment  the  second  codicil  was  absolutely 
inoperative.  The  will  and  first  codicil  must  take  effect  with  regard  to 
the  whole  of  the  real  estate  of  which  the  testatrix  died  possessed, 
whether  acquired  before  or  after  the  date  of  her  original  will. 


168  CONFLICT    OF   LAWS 


CONFLICT  OF  LAWS 
I.  Law  by  Which  Execution  of  Will  is  Governed  * 


KNIGHT  v.  WHEEDON. 

(Supreme  Court  of  Georgia,  1898.     104  Ga.  309,  30  S.  E.  794.) 

LEWIS,  J.  Lucy  A.  Seamans  died  a  resident  of  Kentucky,  and  while 
living  there  executed  a  will  conveying  both  real  and  personal  prop- 
erty situated  in  this  state.  This  will  was  attested  by  only  two  wit- 
nesses. The  will  was  executed  in  conformity  to  the  laws  of  the  state 
of  Kentucky,  and  was  duly  probated  in  that  state.  Mrs.  Emma  W. 
Wheedon,  the  executrix  named  in  the  will,  offered  the  same  for  pro- 
bate in  her  petition  to  the  ordinary  of  Pike  county,  in  this  state,  where 
the  property  devised  and  bequeathed  in  the  will  is  located,  and  pro- 
duced a  duly-certified  exemplification  of  the  probate  proceedings  that 
were  had  in  the  state  of  Kentucky.  The  case  was  appealed  to  the  su- 
perior court  of  Pike  county.  The  plaintiff  in  error  demurred  to  the 
petition  for  probate  upon  several  grounds,  which  demurrer  was  over- 
ruled. The  only  ground  insisted  upon  here  is  that  the  paper  sought 
to  be  set  up  was  not  a  will,  under  the  laws  of  Georgia,  because  it 
was  attested  by  only  two  witnesses.  This  demurrer  was  overruled, 
and  plaintiff  in  error  excepted. 

As  a  general  rule,  which  is  perhaps  universal  in  its  application,  ex- 
cept where  changed  or  modified  by  statute,  the  validity  of  the  execu- 
tion of  a  will  conveying  personal  property  depends  upon  the  law  of  the 
place  of  the  testator's  residence  at  the  time  of  his  death,  but,  as  to  a 
devise  of  real  estate,  the  lex  loci  rei  sitae  governs.  If,  therefore,  a 
will  bequeathing  personalty  is  executed  according  to  the  laws  of  the 
state  where  the  testator  resided,  it  is  a  sufficient  bequest  of  such  per- 
sonalty, although  it  may  not  conform  to  the  laws  of  the  state  where 
the  personal  property  happens  to  be  actually  located  at  the  time  of 
the  death  of  the  testator.  On  the  other  hand,  if  such  a  will  undertakes 
to  devise  lands  in  another  state,  the  law  of  the  state  where  the  lands 
are  located  must  be  strictly  followed  in  the  execution  of  the  will ;  oth- 
erwise it  is  no  testament  at  all  as  to  such  realty.  See  Pol.  Code,  §  8; 
Latine  v.  Clements,  3  Ga.  426,  432;  Key  v.  Harlan,  52  Ga.  476;  3 
Am.  &  Eng.  Enc.  Law,  630,  632,  and  numerous  authorities  there  cited. 

The  only  question  remaining  for  consideration  is  whether  or  not 
the  legislature  of  this  state  has  changed  this  general  principle  of  law 
relating  to  the  execution  of  wills.  By  an  act  approved  December  24, 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  93,  94. 


LAW   BY   WHICH   EXECUTION   OF   WILL   IS   GOVERNED  169 

1886  (see  Acts  1886,  p.  32),  it  is  provided  that  "any  last  will  and  tes- 
tament made  by  a  person  competent  to  make  a  will  under  the  laws  of 
Georgia,  resident  and  a  citizen  of  any  of  the  United  States  other  than 
the  state  of  Georgia,  and  which  may  be  construed  to  dispose  of  real 
or  personal  property  in  this  state,  shall  be  admitted  to  probate  in  any 
county  of  this  state  where  any  of  the  property  disposed  of  by  said 
will  may  be  at  the  time  such  probate  is  sought:  provided,  that  said 
last  will  and  testament  shall  have  been  in  all  respects  executed  in  ac- 
cordance with  the  laws  of  the  state  in  which  he  resided  at  the  time 
of  the  execution:  and  provided,  further,  that  probate  of  said  will 
shall  have  been  made  in  solemn  or  final  form  in  the  state  where  the 
testator  resided  and  admitted  to  record  as  the  last  will  and  testament 
of  the  testator  according  to  the  laws  of  that  state."  The  act  then  goes 
on  to  provide  how  such  a  will  may  be  probated  in  this  state. 

We  do  not  think  it  necessary  to  consider  the  question  as  to  whether 
or  not  it  was  the  legislative  intent  by  this  act  to  change  the  rule  with 
reference  to  the  execution  of  foreign  wills.  To  say  the  least  of  it,  such 
intention  is  by  no  means  clearly  manifested  from  the  act  itself.  This 
law  was  evidently  superseded  by  the  act  approved  November  13,  1889 
(Acts  1889,  p.  190).  There  it  is  clearly  manifest  from  the  first  sec- 
tion of  the  act  that  foreign  wills  conveying  realty  in  this  state  cannot 
be  admitted  to  probate  here  unless  attested  according  to  the  laws  of 
this  state,  but  such  will  conveying  personalty  in  this  state  can  be  ad- 
mitted to  probate  here  if  attested  "as  are  wills  of  personal  estate  in 
the  state  where  the  testator  resides."  The  act  of  1889,  however,  has 
been  in  turn  superseded  by  the  act  approved  December  17,  1894  (Acts 
1894,  p.  102),  now  embodied  in  section  3298  et  seq.  of  the  Civil  Code. 

It  is  insisted  by  counsel  for  the  defendant  in  error  that  this  act  of 
1894  changes  the  former  rule  upon  the  subject,  because  section  4  of 
the  act  (Civ.  Code,  §  3301)  expressly  provides  for  probate  of  a  for- 
eign will  upon  production  of  an  exemplification  of  the  probate  pro- 
ceedings duly  certified,  and  that  it  can  only  be  resisted  as  other  judg- 
ments of  a  sister  state  may  be  attacked.  We  must  construe  that  sec- 
tion in  connection  with  what  precedes.  By  section  2  (Civ.  Code,  § 
3299)  it  is  provided  that,  if  any  realty  in  this  state  is  devised  or  be- 
queathed by  the  terms  of  any  foreign  will,  such  foreign  will  may 
be  admitted  to  probate  in  any  county  in  this  state  in  which  such 
property  is  situated,  provided  such  foreign  will  is  in  writing,  at- 
tested and  executed  according  to  the  laws  of  this  state.  The  next 
section  provides  that  such  foreign  will  may  be  admitted  to  pro- 
bate by  testimony  in  open  court  or  by  interrogatories,  etc.  Then  fol- 
lows the  section  that,  "if  said  foreign  will  has  been  admitted  in  com- 
mon or  solemn  form  in  the  state  in  the  United  States  of  which  the 
testator  was  a  resident  at  the  time  of  his  death,  it  may  be  admitted 
to  probate  in  like  common  or  solemn  form  in  this  state,  upon  pro- 
duction of  an  exemplification  of  the  probate  proceedings,"  etc.  What 
is  meant  by  the  terms  "said  foreign  will"  in  the  last-named  section? 


170  CONFLICT    OF   LAWS 

Evidently  the  will  referred  to  in  the  preceding  provisions  of  the  act; 
that  is,  a  will  executed  by  persons  residing  out  of  this  state,  which,  as 
to  realty,  must  be  "attested  and  executed  according  to  the  laws  of 
this  state."  The  entire  act  should  be  so  construed  as  that  all  its 
provisions  will  stand,  unless  it  is  impossible  from  the  terms  used  to 
reconcile  the  different  provisions  of  the  act. 

To  place  the  construction  on  section  4  insisted  upon  by  counsel  for 
the  defendant  in  error  would  amount  to  a  repeal  of  section  2,  which 
provides,  in  effect,  that  a  foreign  will  as  to  a  devise  of  realty  cannot 
be  probated  in  this  state  unless  executed  according  to  its  laws.  The 
purpose  of  the  act  of  1894  was  not  to  change  the  general  rule  of  law 
in  relation  to  the  execution  of  wills,  but  it  was  simply  to  provide  an 
additional  method  of  admitting  to  probate  in  this  state  wills  executed 
and  proven  in  another  jurisdiction.  The  act  simply  changes  the  law 
of  evidence  on  the  subject.  We  therefore  think  that  the  will  in  ques- 
tion, being  attested  by  only  two  witnesses,  is  inoperative,  so  far  as  it 
undertakes  to  devise  lands  in  this  state ;  but,  inasmuch  as  the  will  be- 
queaths personal  property  and  has  been  executed  according  to  the  laws 
of  the  state  of  the  residence  of  the  testatrix,  we  think  it  should  have 
been  admitted  to  probate  as  a  muniment  of  title  to  such  personalty, 
and  the  court,  therefore,  did  not  err  in  overruling  the  demurrer  to 
the  petition.  Judgment  affirmed. 


II.  Change  of  Domicile  and  Effect  Thereof 8 


SHUTE  v.  SARGENT. 

(Supreme  Court  of  New  Hampshire,  1893.    67  N.  H.  305,  36  Atl.  282.) 

Opinion  on  bill  of  interpleader  filed  by  Shute,  as  administrator  with 
the  will  annexed  of  Sarah  A.  P.  Sargent,  deceased,  against  the  hus- 
band and  legatees  of  decedent.  Case  discharged. 

The  will  was  made  in  1885,  at  which  time  the  testatrix  was  domiciled 
with  her  husband  in  Massachusetts,  and  the  husband  expressed  in 
writing,  on  the  back  of  the  will,  consent  to  its  provisions.  In  1888,  he 
abandoned  her  without  cause,  and  procured  her  ejection  by  legal  pro- 
cess from  the  house  in  which  they  had  been  living.  She  removed  to 
Kensington,  in  Rockingham  county,  in  this  state,  and  lived  there  till 
her  death,  in  1889;  and  her  domicile  was  there,  if  she  could  legally 
have  a  domicile  apart  from  her  husband.  The  husband  retained  a 
domicile  in  Massachusetts.  The  will  was  approved  and  allowed  by 
the  probate  court  of  Rockingham  county,  on  petition  of  one  of  the 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  93,  94. 


171 

legatee  defendants,  with  notice  to  the  other  defendants,  and  without 
objection  from  any  one.  On  the  same  day,  the  husband  filed  with  the 
probate  court  a  revocation  of  his  assent  to  the  will,  together  with  his 
waiver  of  its  provisions,  and  claim  of  his  distributive  share,  under 
the  statute.  The  Public  Statutes  of  Massachusetts  (chapter  147,  §§1, 
6)  and  the  reported  decisions  of  Massachusetts  were  made  a  part  of 
the  case. 

BLODGETT,  J.  The  maxim  that  the  domicile  of  the  wife  follows  that 
of  her  husband  "results  from  the  general  principle  that  a  person  who 
is  under  the  power  and  authority  of  another  possesses  no  right  to 
choose  a  domicile."  Story,  Confl.  Laws,  §  46.  "By  marriage,  hus- 
band and  wife  become  one  person  in  law;  that  is,  the  very  being  or 
legal  existence  of  the  wife  is  suspended  during  the  marriage,  or,  at 
least,  is  incorporated  and  consolidated  into  that  of  the  husband,  under 
whose  wing,  protection,  and  cover  she  performs  everything."  1  Bl. 
Comm.  442.  Such  being  the  common-law  status  of  the  wife,  her  domi- 
cile necessarily  followed  her  husband's,  and  the  maxim  applied  without 
limitation  or  qualification.  But  the  common-law  theory  of  marriage 
has  largely  ceased  to  obtain  everywhere,  and  especially  in  this  state, 
where  the  law  has  long  recognized  the  wife  as  having  a  separate  ex- 
istence and  separate  rights  and  separate  interests.  In  respect  to  the 
duties  and  obligations  which  arise  from  the  contract  of  marriage,  and 
constitute  its  object,  husband  and  wife  are  still,  and  must  continue  to 
be,  a  legal  unit;  but  so  completely  has  the  ancient  unity  become  dis- 
severed, and  the  theory  of  the  wife's  servitude  superseded,  by  the 
theory  of  equality  which  has  been  established  by  the  legislation  and 
adjudications  of  the  last  half  century,  that  she  now  stands,  almost 
without  an  exception,  upon  an  equality  with  the  husband  as  to  property, 
torts,  contracts,  and  civil  rights.  Pub.  St.  c.  176;  Id.  c.  90,  §  9; 
Seaver  v.  Adams,  66  N.  H.  142,  143,  19  Atl.  776,  49  Am.  St.  Rep. 
597,  and  authorities  cited.  And  since  the  law  puts  her  upon  an  equal- 
ity, so  that  he  now  has  no  more  power  and  authority  over  her  than 
she  has  over  him,  no  reason  would  seem  to  remain  why  she  may 
not  acquire  a  separate  domicile  for  every  purpose  known  to  the  law. 
If,  however,  there  are  exceptional  cases  where,  for  certain  purposes, 
it  might  properly  be  held  otherwise,  there  can  be  in  this  jurisdiction 
no  reason  for  holding  that,  when  the  husband  has  forfeited  his  marital 
rights  by  his  misbehavior,  the  wife  may  not  acquire  a  separate  dom- 
icile, and  exercise  the  appertaining  rights  and  duties  of  citizenship  with 
which  married  women  have  become  invested.  To  hold  otherwise 
would  not  only  break  the  line  of  consistency  and  progress  which  has 
been  steadily  advanced,  until  the  ancient  legal  distinctions  between  the 
sexes,  which  were  adapted  to  a  condition  that  has  ceased  to  exist,  and 
can  never  return,  have  been  largely  swept  away,  but  it  would  also  be 
subversive  of  the  statutory  right  of  voting  and  being  elected  to  office 
in  educational  matters,  which  wives  now  possess  (Pub.  St.  c.  90,  §§9, 
14),  inasmuch  as  it  would  compel  the  innocent  wife  to  reside  and  make 


172  CONFLICT    OF   LAWS 

her  home  in  whatever  voting  precinct  the  offending  husband  might 
choose  to  fix  his  domicile,  or  suffer  the  deprivation  of  the  elective 
franchise;  and  if  he  should  remove  his  domicile  to  another  state,  and 
she  should  remain  here,  the  exercise  of  all  her  legal  rights  dependent 
upon  domicile  would  be  similarly  affected.  This  cannot  be  the  law. 
On  the  contrary,  the  good  sense  of  the  thing  is  that  a  wife  cannot  be 
divested  of  the  right  of  suffrage,  or  be  deprived  of  any  civil  or  legal 
right,  by  the  act  of  her  husband ;  and  so  we  take  the  law  to  be.  When- 
ever it  is  necessary  or  proper  for  her  to  acquire  a  separate  domicile, 
she  may  do  so.  This  is  the  rule  for  the  purposes  of  divorce  (Payson 
v.  Payson,  34  N.  H.  518;  Cheever  v.  Wilson,  9  Wall.  108,  124,  19  L. 
Ed.  604;  Ditson  v.  Ditson,  4  R.  I.  87,  107;  Harding  v.  Alden,  9 
Greenl.  (Me.)  140,  23  Am.  Dec.  549) ;  and  it  is  the  true  rule  for  all 
purposes. 

Upon  these  views,  the  testatrix  was  domiciled  in  this  state  at  the 
time  of  her  decease,  and,  as  the  consequence,  distribution  of  her  estate 
is  to  be  made  accordingly.  Goodall  v.  Marshall,  11  N.  H.  88,  35  Am. 
Dec.  472;  Vandewalker  v.  Rollins,  63  N.  H.  463,  464,  3  Atl.  625. 
The  rights  of  her  husband  therein  are  not  affected  by  his  written  as- 
sent to  the  will.  The  Massachusetts  statute,  making  such  assent  bind- 
ing, has  no  extraterritorial  force ;  and  there  is  no  principle  upon  which 
it  can  be  given  effect  in  this  jurisdiction,  without  violating  the  positive 
enactments  of  our  statute  relative  to  the  husband's  distributive  share 
in  his  deceased  wife's  estate.  Pub.  St.  c.  195,  §§  12,  13.  This  can- 
not be  done.  If  the  result  shall  be  to  give  to  this  husband  a  benefit 
which  the  testatrix  did  not  intend  he  should  receive,  and  which,  in  jus- 
tice, he  ought  not  to  .have,  it  is  to  be  regretted ;  but  hard  cases  can- 
not be  permitted  to  make  bad  equity  any  more  than  bad  law.  Case 
discharged. 

CARPENTER,  J.,  did  not  sit.     The  others  concurred. 


PROBATE    OF    WILLS  173 

PROBATE  OF  WILLS 
I.  Jurisdiction  x 

MILLER  v.  SWAN  et  al. 
SWAN  v.  FIDELITY  TRUST  &  SAFETY-VAULT  CO. 

(Court  of  Appeals  of  Kentucky,  1890.    91  Ky.  36,  14  S.  W.  964.) 

PRYOR,  J.  Mrs.  Belle  Compton,  died  in  Jefferson  county  in  Febru- 
ary, 1886,  at  the  residence  of  one  T.  B.  Miller.  She  left  a  last  will 
that  was  admitted  to  probate  in  the  Hardin  county  court  in  the  same 
month  and  year  of  her  death.  Her  sole  devisee  was  E.  P.  Ditto,  who 
conveyed  certain  land  devised  to  him  to  S.  T.  Hovey  to  pay  certain 
debts,  that  of  the  appellants  Swan  &  Brown  being  among  the  number. 
Thomas  B.  Miller,  an  appellant  in  this  case,  with  whom  the  testatrix 
lived  at  her  death,  asserted  a  claim  against  her  for  board,  caring  for 
her  in  her  illness,  and  for  burial  expenses.  Miller  had  the  will  or  a 
copy  of  it  admitted  to  probate  in  the  Jefferson  county  court,  and  the 
Fidelity  Trust  &  Safety- Vault  Company  was  appointed  the  adminis- 
trator, with  the  will  annexed,  and  then  instituted  this  action  to  settle 
the  estate  as  an  insolvent  estate,  and  to  sell  the  land  to  pay  the  debts 
of  the  testatrix.  She  owned  no  personal  estate,  and  left  no  debts 
except  the  one  asserted  by  Miller.  Ditto,  with  the  trustee  Hovey,  and 
Swan  &  Brown,  the  creditors  of  Ditto,  were  made  defendants,  and  in- 
sist that  the  county  court  of  Jefferson  county  had  no  jurisdiction  of 
the  probate,  for  the  reason  that  the  county  court  of  Hardin  had  al- 
ready admitted  the  will  to  probate  in  that  county,  and  it  must  there- 
fore be  assumed,  as  county  courts  have  the  general  jurisdiction  in 
such  cases,  that  the  Hardin  county  court  had  jurisdiction  of  the  par- 
ties and  the  subject-matter,  and  that  Hardin  county  was  in  fact  the 
county  of  the  residence  of  the  testatrix.  The  testimony  as  to  her  place 
of  residence  is  certainly  conflicting,  but  it  is  sufficient  to  say  that  as 
both  the  court  below  and  the  superior  court,  on  an  appeal  to  that  court, 
have  determined  that  her  residence  was  in  Jefferson  county,  we  are 
disposed  to  follow  their  ruling  on  this  question  of  fact,  and  certainly 
the  testimony,  we  think,  warrants  such  a  finding. 

It  is  a  well-recognized  rule  of  law  that,  where  a  court  has  no  ju- 
risdiction of  the  subject-matter,  its  judgment  affecting  it  is  void,  and 
a  void  judgment  can  be  assailed  in  either  a  direct  or  collateral  pro- 
ceeding. Section  28,  c.  113,  Gen.  St.,  provides  that  "no  will  shall  be 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  95. 


174  PROBATE    OF    WILLS 

received  in  evidence  until  it  has  been  allowed  and  admitted  to  record 
by  a  county  court,  and  its  probate  before  such  court  shall  be  conclu- 
sive, except  as  to  the  jurisdiction  of  the  court,  until  the  same  is  super- 
seded, reversed,  or  annulled." 

It  seems  to  this  court  that  this  section  of  the  statute  leaves  the  ques- 
tion of  jurisdiction  to  be  made  at  any  time  or  in  any  proceeding  where 
it  may  become  necessary  to  question  the  validity  of  the  probate,  and, 
as  to  all  other  questions,  the  probate  is  conclusive  until  superseded,  an- 
nulled, or  reversed,  and  this  collateral  attack  as  to  the  validity  of  the 
judgment  or  order  of  probate  by  the  county  court  can  only  be  made 
on  the  question  of  jurisdiction.  The  statute  requires,  where  the  tes- 
tator has  a  known  place  of  residence  in  the  state,  that  his  will  "shall 
be  proved  before,  and  admitted  to  record  by,  the  county  court  of  the 
county  of  the  testator's  residence."  Section  26,  Gen.  St.  c.  113. 

This  question  was,  in  effect,  determined  by  this  court  in  the  case  of 
Jacobs  v.  Railroad  Co.,  reported  in  10  Bush  (Ky.)  263.  It  is  said  by 
counsel,  however,  that  the  case  of  Jacobs,  administrator,  has  no  rela- 
tion or  bearing  on  a  case  like  this,  because  the  defendant,  who  was 
sued  by  the  administrator,  may,  in  fact,  show  that  the  court  had  no 
jurisdiction  to  appoint  him,  and  that  he  was  seeking  a  recovery  with- 
out right  or  title.  Here  are  two  orders  or  judgments  of  probate,  one 
in  Hardin  county  and  one  in  Jefferson  county,  and  one  or  the  other 
must  be  void.  The  court  hold  that  the  administrator,  in  the  case  of 
Jacobs  v.  Railroad  Co.,  had  no  right  to  sue,  because  the  county  court 
in  which  he  qualified  had  no  jurisdiction  to  appoint  him;  and  the  fact 
that  the  question  of  his  right  to  administer  might  have  been  raised  in 
that  case  did  not  prevent  the  defense.  If  the  question  had  been -raised 
in  the  Hardin  county  court  on  the  probate  between  parties  who  had 
the  right  to  resist  it  on  the  ground  that  the  testatrix  resided  in  Jef- 
ferson county,  then  there  might  be  some  reason  for  holding  the  judg- 
ment final;  but  there  is  no  such  plea  in  this  case.  The  question  was 
never  raised,  and,  the  domicile  of  the  testatrix  being  a  jurisdictional 
fact  as  to  the  probate,  the  jurisdiction  of  the  county  court  of  Hardin 
to  admit  the  paper  to  probate  may  be  questioned  in  this  collateral  pro- 
ceeding. 

The  Jefferson  county  court  having  jurisdiction  to  probate  the  will, 
no  inquiry  can  then  be  made  in  this,  a  collateral  proceeding,  as  to  the 
manner  in  which  the  probate  was  had.  The  copy  of  the  will  may  have 
been  the  best  evidence  that  could  have  been  produced  at  the  time  the 
probate  was  had.  The  original  will  should  have  been  produced  as  the 
best  evidence,  but  its  production  was  not  necessary  to  give  the  court 
jurisdiction,  if  the  testatrix  resided  in  the  county,  and  its  non-produc- 
tion was  no  doubt  accounted  for.  The  order  of  the  county  court  of 
Jefferson  may  be  erroneous,  but  the  will  or  the  copy  of  record  in  that 
court  is  an  exact  copy  of  the  will  found  in  the  Hardin  county  court. 
Walters  v.  Ratliff,  5  Bush  (Ky.)  575.  The  probate  in  Hardin  is  no 
evidence  of  the  testamentary  act,  or  that  such  a  paper  was  ever  exe- 


LIMITATION   ON   PROBATE  175 

cuted,  but  its  probate  in  the  county  of  testatrix's  residence  is  conclu- 
sive until  reversed  or  set  aside  by  some  direct  proceeding. 

As  to  the  board  charged  by  the  appellant  Miller,  while  there  was  no 
express  agreement  to  pay  on  the  part  of  the  testatrix,  it  is  manifest 
that,  from  what  transpired  between  Miller's  family  and  the  testatrix, 
she  expected  to  pay,  and  Miller  to  receive,  compensation  for  her 
board.  The  testatrix  said  time  and  again  that  she  intended  to  pay 
board.  She  received,  in  her  unfortunate  condition,  the  kindest  treat- 
ment from  Miller  and  his  family;  was  at  his  house  for  several  years, 
and  with  Miller  and  his  family  in  limited  circumstances,  and  she  with 
no  particular  claim  on  his  generosity,  it  is  hardly  reasonable  to  sup- 
pose that  he  was  taking  care  of  and  providing  for  her  from  feelings 
of  humanity  alone. 

The  attorney's  fee,  under  the  circumstances,  should  be  disallowed 
against  the  administrator,  as  the  action  was  really  brought  at  Miller's 
instance,  and  for  his  benefit.  We  do  not  intend  to  say  that  no  com- 
pensation should  be  allowed  the  attorney  for  advice  given  the  admin- 
istrator, but  for  bringing  this  action  no  allowance  should  be  made,  as 
it  was  instigated  alone  by  the  creditor,  and  the  attorneys  in  this  case 
were  acting  for  him. 

The  judgment  is  reversed  on  the  appeal  of  Miller,  and  reversed  only 
on  the  appeal  of  Brown  as  to  the  attorney's  fee.  On  the  return  of 
the  case,  the  court  will  allow  the  claim  for  board  reported  by  the  com- 
missioner in  addition  to  the  judgment  already  rendered. 


II.  Limitation  on  Probate  a 


HADDOCK  v.  BOSTON  &  M.  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  18SS.     146  Mass.  155,  15  N.  E. 
495,  4  Am.  St.  Rep.  295.) 

Appeal  by  the  Boston  &  Maine  Railroad  Company  from  a  decree 
of  the  probate  court  for  Essex  county,  (entered  November  16,  1885,) 
admitting  to  probate  the  will  of  Sarah  Pendergast.  The  appeal  was 
claimed  by  the  Boston  &  Maine  Railroad  Company,  at  the  hearing  be- 
fore the  probate  court,  and  was  allowed  by  the  judge  of  that  court, 
it  appearing  that  said  railroad  owned  real  estate  in  Haverhill,  devised 
by  the  will,  the  title  to  which  might  be  affected  by  the  establishment  of 
rights  under  said  will.  The  will  was  dated  October  31,  1807.  At  the 
hearing  in  the  supreme  judicial  court,  the  chief  justice  made  certain 
rulings,  the  nature  of  which,  with  other  facts,  sufficiently  appear  in 
the  opinion,  and  reported  the  case  to  the  full  court. 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  95. 


176  PROBATE    OF    WILLS 


,  J.  The  first  question  discussed  by  the  appellant  is  whether 
the  probate  court  has  authority,  as  matter  of  law,  to  admit  a  will  to 
probate  63  years  after  the  death  of  the  testator;  and,  incidentally, 
whether  there  is  any  limit  of  time  after  the  death  of  the  testator,  sub- 
sequent to  which  the  court  has  no  such  authority.  In  Shumway  v. 
Holbrook,  1  Pick.  117,  11  Am.  Dec.  153,  the  question  was  whether  a 
will  not  admitted  to  probate  was  admissible  in  evidence.  It  was  held 
that  it  was  not;  but  it  is  said:  "If  a  will  can  be  found,  it  may  be 
proved  in  the  probate  court  at  any  time,  in  order  to  establish  a  title 
to  real  estate.  It  differs  from  an  administration  of  personal  property, 
which  cannot  be  originally  granted  upon  the  estate  of  any  person  after 
twenty  years  from  his  decease."  In  the  course  of  the  argument,  Mr. 
Justice  Jackson  alluded  to  a  case  in  Essex  County,  perhaps  30  years 
before,  where  it  was  found  that  a  widow  must  hold  land  under  a  will 
which  had  not  been  proved.  The  will  having  been  offered  for  pro- 
bate, the  judge  of  probate  declined  to  allow  it,  as  more  than  20  years 
had  elapsed  since  the  death  of  the  testator,  and,  on  appeal,  his  decision 
was  reversed,  and  the  will  admitted  to  probate.  The  research  of  the 
counsel  for  the  appellant  has  established  that  the  case  thus  alluded  to 
was  that  of  Dennis  v.  Bearse,  (Essex,)  and  has  supplied  us  with  as  sat- 
isfactory an  account  of  it,  drawn  from  the  papers  on  file,  as  they  will 
afford.  It  is  a  case  to  which  some  weight  must  be  attached,  as  it 
brought  into  question,  directly,  the  authority  of  the  court  of  probate, 
and  the  appeal  was  to  the  full  bench  of  the  supreme  court,  which  re- 
versed the  original  decree.  While  no  opinion  appears  to  have  been 
written,  it  could  not  but  have  been  a  carefully  considered  case,  as  it 
reversed  the  opinion  of  the  judge  of  probate  as  to  the  extent  of  his 
jurisdiction.  The  will  thus  admitted  to  probate  was  so  admitted  36 
or  37  years  after  its  date.  How  long  after  the  death  of  the  testator 
does  not  clearly  appear,  although  some  of  the  papers  found  indicate 
that  it  was  more  than  30  years  after.  In  Marcy  v.  Marcy,  6  Mete. 
360,  the  question  was  whether  there  was  sufficient  evidence  that  a  will, 
which  became  operative  43  years  before,  had  been  admitted  to  pro- 
bate, so  that  it  could  be  read  in  evidence.  The  court  held  that  there 
was  such  evidence  ;  adding,  "and  on  evidence  like  the  present,  it  would 
be  the  duty  of  the  probate  court  to  establish  the  will,  if,  for  want  of 
form,  the  probate  should  have  been  considered  so  defective  that  the 
will  had  been  rejected  as  evidence  in  its  present  state."  In  Waters  v. 
Stickney,  12  Allen,  1,  90  Am.  Dec.  122,  where  it  was  held  that  the  pro- 
bate court,  14  years  after  admitting  a  will  to  probate,  might  admit  to 
probate  a  codicil,  written  upon  the  same  leaf,  which  had  escaped  at- 
tention, and  was  not  passed  upon  at  the  time  of  the  probate  of  the 
original  will,  it  is  said  by  Mr.  Justice  Gray,  citing  the  above  cases  :  "It 
has  been  directly  adjudged  by  this  court  that  a  will  may  be  proved 
even  thirty  years  after  the  death  of  the  testator,  although  original  ad- 
ministration could  not,  by  statute,  be  granted  after  twenty  years  ;" 
and  again,  "if  no  will  had  been  proved,  the  lapse  of  time  would  not 


LIMITATION   ON   PROBATE  177 

prevent  both  will  and  codicil  from  being-  proved  now."  While  it  is 
true  that  in  neither  of  these  cases  has  it  been  decided  that  a  will  dis- 
posing of  lands  can  be  admitted  to  probate  after  60  years,  yet  there  is 
no  suggestion  in  any  of  them  that  there  is  any  limitation  of  time  to 
such  proof,  and  the  language  used  is  quite  explicit  to  the  contrary. 

In  view  of  the  decisions  made,  and  the  repeated  expressions  direct- 
ly relevant  to  the  cases  considered,  used  in  argument  by  judges  of  this 
court,  we  cannot  treat  this  inquiry  as  the  appellant  desires  we  should, 
— as  practically  a  new  question.  We  must  deem  it  one  that  has  been 
fairly  passed  upon  and  decided.  It  may  be  that  the  inconveniences 
which  might  arise  from  the  probate  of  a  will  many  years  after  the 
death  of  the  testator  were  such  that  a  statute  limiting  the  period  might 
be  properly  enacted.  That  course  has,  in  some  states,  been  adopted. 
Conn.  Rev.  1875,  c.  11,  §§  21-23;  Rev.  St.  Me.  c.  64,  §  1.  But  stat- 
utes of  limitation  are  arbitrary,  and  the  considerations  which  apply  to 
positive  laws  of  this  character  are  legislative,  rather  than  judicial.  In 
many  instances,  where  a  great  length  of  time  has  elapsed  after  the 
death  of  a  testator,  possessory  titles  will  have  been  acquired  which 
will  prevail  against  the  record.  What  is  due  to  the  just  rights  of  the 
devisees  is  to  be  considered  with  reference  to  other  rights  of  property, 
or  to  the  repose  of  the  community ;  but  such  considerations  belong  to 
the  domain  of  legislation.  So  long  as  one  can  produce  the  evidence 
necessary  to  obtain  the  probate  of  a  will,  we  can  see  no  legal  reason 
why  one  who  relies  upon  it  should  not  be  allowed  to  prove  it  as  he 
would  be  permitted  to  prove  a  deed,  however  ancient,  under  which  he 
claimed  title.  The  fact  that  he  could  not  offer  in  evidence  a  will  not 
admitted  to  probate,  as  he  might  an  ancient  deed,  would  certainly  af- 
ford no  reason  why  its  authenticity  should  not  be  established  in  the 
probate  court  by  its  regular  course  of  procedure. 

The  appellant  further  contended  that  the  jury  ought  not  to  have 
been  allowed  (in  determining  the  question  whether  the  testatrix  was  a 
widow,  and  thus  competent  to  make  a  will  as  the  law  stood  in  1807) 
to  consider  the  fact  that  she  actually  executed  a  paper,  purporting  to 
be  a  will  devising  land,  as  any  evidence  that  she  had  legal  capacity 
so  to  do.  This  fact,  in  connection  with  the  other  facts  proved,  was 
competent  to  be  considered.  There  was  no  ruling  that,  alone,  it  would 
have  been  sufficient  to  establish  her  legal  capacity;  that  is,  that  she 
was,  at  the  time,  a  widow.  There  was  evidence  of  reputation  that  the 
husband  of  the  testatrix  died  soon  after  their  marriage;  that  a  deed 
was  made  to  her,  December  21,  1801,  of  the  very  land  which  she  un- 
dertook to  dispose  of  by  will,  in  which  she  was  described  as  Sarah 
Pendergast,  widow,  which  deed  was  found  among  her  papers;  and 
she  executed  the  will  by  the  same  name  as  that  recited  in  the  deed,  in 
which  she  was  described  as  widow,  although  that  word  is  not  append- 
ed to  her  name  in  the  will.  The  act  done  by  her,  of  disposing,  or  as- 
suming to  dispose,  of  her  property,  which  she  could  only  lawfully  do 
DUNM.CAS.  WILLS — 12 


178  PROBATE   OF    WILLS 

if  a  widow,  was  an  assertion  of  her  status,  and  that  of  her  legal  capac- 
ity, made  in  an  important  transaction  which  might  properly  have  been 
considered  in  connection  with  the  other  evidence. 

The  conclusion  we  have  reached  renders  it  unnecessary  to  decide 
whether  the  appellant  was  lawfully  entitled  to  appeal.  Other  excep- 
tions taken  by  it  were  waived  in  this  court.  Cause  to  stand  for  fur- 
ther proceedings. 


HI.    Who  May  Propound  Will » 


HANLEY  v.  KRAFTCZYK. 

(Supreme  Court  of  Wisconsin,  1903.    119  Wis.  352,  96  N.  W.  820.) 

This  is  an  appeal  from  the  judgment  of  the  superior  court  of  Mil- 
waukee county  reversing  a  judgment  of  the  county  court  refusing  to 
admit  the  will  of  James  Hanley  to  probate,  and  remitting  the  cause  to 
the  county  court,  with  directions  to  admit  the  will  to  probate.  It  ap- 
pears from  the  record,  and  is  undisputed,  or  found  by  the  court,  in 
effect,  that  the  testator  executed  his  last  will  and  testament  September 

12,  1872,  wherein  and  whereby  he  bequeathed  to  his  son  $100  and  to 
his  daughter  $50,  and  devised  certain  real  estate,  therein  described, 
to  his  wife,  Johanna,  and  named  her  therein  as  executrix  of  his  will ; 
that  the  testator  died  September  13,  1872;   that  November  30,  1872, 
the  widow,  Johanna,  presented  to  the  county  court  her  verified  peti- 
tion, praying  that  such  will  be  proved  and  admitted  to  probate;   Feb- 
ruary 19,  1874,  Johanna  married  Cyrus  J.  Dodge;   November  9,  1881, 
Cyrus  J.  Dodge  got  a  tax  deed  on  the  land  so  devised  to  Johanna ; 
October  31,  1882,  Cyrus  J.  Dodge  and  his  wife,  the  said  Johanna,  con- 
veyed the  land  so  devised,  by  warranty  deed,  with  full  covenants,  to 
the  defendant  in  this  action;   January  18,  1899,  the  defendant  in  this 
action  presented  to  the  county  court  his  petition  stating  the  facts  men- 
tioned, and  others,  and  praying  that  the  will  be  proved  and  admitted 
to  probate;    that  thereupon  the  plaintiff,  claiming  under  the  heirs  at 
law,  filed  objections  to  such  probate.     *     *     * 

CASSODAY,  C.  J.4  (after  stating  the  facts).  Numerous  technical  ob- 
jections are  raised  to  the  proceedings.  The  testator  died  September 

13,  1872,  leaving  a  will  in  which  he  devised  his  homestead  to  his  wid- 
ow, Johanna.    On  the  same  day  Johanna  filed  the  will  in  the  county 
court.     Two  and  a  half  months  afterwards  she  petitioned  the  county 
court  to  have  the  will  proved  and  admitted  to  probate.     At  the  time 
the  testator  died  he  and  his  wife,  Johanna,  were  living  upon  the 

a  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  95. 
*  The  statement  of  facts  is  abbreviated  and  part  only  of  the  opinion  is 
given. 


WHO   MAY   PROPOUND   WILL  179 

premises  so  devised ;  and  she  continued  to  live  thereon,  for  a  time  as 
a  widow,  and  subsequently  with  her  second  husband,  until  October 
31,  1882,  when  she  joined  with  her  husband  in  conveying  the  same  by 
warranty  deed  with  full  covenants  to  the  defendant,  and  ever  since 
that  time  the  defendant  has  been  in  such  possession. 

It  is  claimed  that  the  defendant  has  no  interest  in  the  proceedings 
nor  standing  in  court.  A  will  is  a  muniment  of  title,  but  in  this  state, 
and  some  others,  in  order  to  "be  effectual  to  pass  either  real  or  per- 
sonal estate,"  it  must  be  "duly  proved  and  allowed  in  the  county  court." 
Section  2294,  Rev.  St.  1898.  When  so  admitted  to  probate,  it  relates 
back  to  the  time  of  the  death  of  the  testator,  and  is  to  be  treated  as 
speaking  from  that  moment.  Flood  v.  Kerwin,  113  Wis.  680,  89  N. 
W.  845,  and  cases  there  cited.  There  is  no  ground  for  claiming  that 
the  failure  of  the  county  court  to  act  upon  the  petition  of  the  widow, 
filed  November  30,  1872,  is  a  bar  to  the  action  taken  in  1899.  "A  will 
devising  lands  may  be  admitted  to  probate  at  any  time  after  the  death 
of  the  testator."  Haddock  v.  Boston  &  Maine  R.  R.,  146  Mass.  155, 
160,  15  N.  E.  495,  4  Am.  St.  Rep.  295.  In  that  case  the  will  was  not 
admitted  to  probate  until  more  than  60  years  after  the  death  of  the 
testator.  That  case  followed  a  former  case,  wherein  it  was  said  that, 
"if  a  will  can  be  found,  it  may  be  proved  in  the  probate  office  at  any 
time,  in  order  to  establish  a  title  to  real  estate."  Shumway  v.  Hoi- 
brook,  1  Pick.  (Mass.)  114,  117,  11  Am.  Dec.  153.  So  it  has  been  held 
in  that  state  that  "whoever  has  a  right  to  offer  a  will  in  evidence,  or 
to  make  title  under  it,  may  insist  on  having  it  proved."  Stebbins  v. 
Lathrop,  4  Pick.  (Mass.)  33,  42.  The  defendant,  claiming  title  by 
deed  from  the  devisee  named  in  the  will  and  her  husband,  certainly 
had  a  right  to  insist  on  having  the  will  admitted  to  probate.  The  fact 
that  such  husband  had  obtained  a  tax  deed  on  the  land  did  not  estop 
the  defendant  from  claiming  title  under  the  will  and  the  conveyance 
from  the  devisee. 

The  claim  that  the  defendant  is  barred  from  insisting  upon  the  pro- 
bate of  the  will  by  reason  of  the  statutes  of  limitation  is  without 
foundation.  *  *  *  Affirmed. 


180  PROBATE    OF    WILLS 

IV.  Proceedings  When  Will  Contested 
1.  PARTIES* 


BLOOR  v.  PLATT. 

(Supreme  Court  of  Ohio,  1908.    78  Ohio  St  46,  84  N.  E.  604,  14  Ann.  Gas.  332.) 

DAVIS,  J.6  It  will  appear  from  the  record  in  this  case  that  Benjamin 
F.  Platt,  one  of  the  defendants,  is  the  son  and  only  heir  at  law  of  Char- 
lotte Spice ;  that  Charlotte  Spice  died  by  her  own  hand  on  the  15th  day 
of  July,  1904;  that  on  March  24,  1905,  the  defendant  Almira  E.  Platt, 
wife  of  Benjamin  F.  Platt,  made  application,  for  the  probate  of  an  al- 
leged lost  will  of  Charlotte  Spice;  and  that  on  May  31,  1905,  said  lost 
will  was  admitted  to  probate,  establishing  the  contents  thereof  to  the 
effect  that  all  of  the  property  of  the  testatrix  was  devised  and  be- 
queathed to  Almira  E.  Platt,  with  direction  that  Benjamin  F.  Platt 
should  receive  a  kind  and  liberal  support  during  his  natural  life.  Aft- 
er the  death  of  Charlotte  Spice,  and  before  the  will  was  admitted  to 
probate,  the  plaintiff,  who  was  already  a  judgment  creditor  of  Benja- 
min F.  Platt,  caused  a  levy  to  be  made  on  the  real  estate  of  which 
Charlotte  Spice  died  seised,  as  the  property  of  Benjamin  F.  Platt,  and 
likewise  did  another  judgment  creditor  of  Benjamin  F.  Platt,  the  Mt. 
Clemens  Savings  Bank.  In  an  action  to  marshal  the  liens  and  sell  the 
real  estate  so  levied  upon,  the  court  of  common  pleas  found  the  priori- 
ties and  decreed  the  sale  of  the  property,  and  an  order  of  sale  was  is- 
sued to  carry  the  decree  into  effect.  The  sheriff  had  caused  the  lands 
to  be  duly  appraised,  when  he  was  stopped  from  further  proceedings 
under  the  writ  by  an  injunction  and  the  probate  of  this  will.  Thereup- 
on the  plaintiff  brought  this  action  to  set  aside  the  will. 

The  defendant  Almira  E.  Platt  demurred  to  the  petition  on  several 
grounds,  one  of  which  was  that  the  plaintiff  had  no  legal  capacity  to 
sue ;  and,  although  the  circuit  court  found  no  error  in  this  respect,  she 
still  insists  upon  it  here,  as  she  has  a  right  to  do.  In  an  act  defining 
the  jurisdiction  of  the  probate  court  (51  Ohio  Laws,  p.  167;  2  Swan 
&  C.  Rev.  St.  p.  1216)  it  was  provided  that,  "when  a  will  is  admitted  to 
probate  in  the  probate  court,  or  court  of  common  pleas  on  appeal,  any 
person  interested  shall  have  a  right  to  contest  its  validity."  In  the  re- 
vision of  the  statutes  of  1880  the  language  used  to  express  the  same 
privilege  is  as  follows:  "Sec.  5858.  A  person  interested  in  a  will  or 
codicil  admitted  to  probate  in  the  probate  court,  or  court  of  common 
pleas  on  appeal,  may  contest  the  validity  thereof" — and  so  it  remains 

e  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  95. 
«  Part  only  of  the  opinion  is  given. 


PROCEEDINGS   WHEN    WILL   CONTESTED  181 

to  the  present  time.  Section  5859,  Revised  Statutes,  provides:  "All 
the  devisees,  legatees  and  heirs  of  the  testator,  and  other  interested 
persons,  including  the  executor  or  administrator,  must  be  made  parties 
to  the  action."  Construing  all  these  enactments  together,  it  seems 
clear  to  us  that  the  expressions,  "any  person  interested,"  "a  person  in- 
terested in  a  will  or  codicil,"  and  "other  interested  persons,"  are  equiv- 
alent, and  may  include  persons  other  than  the  devisees,  legatees,  heirs, 
executors,  and  administrators  of  the  testator.  Any  person  who  has 
such  a  direct,  immediate,  and  legally  ascertained  pecuniary  interest  in 
the  devolution  of  the  testator's  estate  as  would  be  impaired  or  defeated 
by  the  probate  of  the  will,  or  be  benefited  by  setting  aside  the  will,  is 
"a  person  interested."  In  this  case  the  plaintiff  had  obtained  a  valid 
lien  by  levy  on  the  property  of  the  heir  at  a  time  when  the  testatrix 
was  supposed  to  have  died  intestate.  There  can  be  no  doubt  that  such 
lien  will  prevail  if  this  alleged  lost  will  is  set  aside  and  found  not  to  be 
the  last  will  and  testament  of  Charlotte  Spice ;  and  it  is  equally  clear  that 
if  the  probate  of  the  will  shall  stand  the  plaintiff's  lien  will  be  defeated. 
The  conclusion  necessarily  follows  that  the  plaintiff  is  a  person  in- 
terested, and  therefore  has  legal  capacity  to  prosecute  this  action. 

But  it  is  objected  here  that  the  plaintiff's  claim  is  not  against  the  es- 
tate of  the  testatrix,  but  against  the  heir,  who  takes  nothing  under  the 
will ;  and  that  the  testatrix  had  the  legal  right  to  leave  her  property  to 
whom  she  pleased,  even  to  the  extent  of  intentionally  defeating  the 
creditors  of  her  only  heir.  Let  all  of  this  contention  be  granted ;  yet,  if 
this  paper,  the  probate  of  which  is  contested,  is  not  the  last  will  of  the 
decedent,  the  plaintiff  is  interested  and  must  prevail,  because  the  title 
is  then  cast  upon  the  heir  by  operation  of  law,  and  subject  to  the  lien 
which  attaches  by  relation  to  the  time  of  the  levy.  Can  it  therefore  be 
said  with  any  show  of  justice  or  reason  that  when  a  paper  purporting 
to  be  a  will,  and  obviously  designed  with  the  purpose  of  defeating  cred- 
itors of  the  heir,  is  offered  for  probate,  a  lien  creditor  cannot  have  his 
day  in  court  to  show  that  the  paper  is  not  a  valid  last  will  and  testa- 
ment? We  think  not.  *  *  *  Reversed  on  other  grounds. 


2.   PLEADING7 


BARKSDALE  v.  DAVIS. 

(Supreme  Court  of  Alabama,  1897.    114  Ala.  623,  22  South.  17.) 

H£AD,  J.8    The  bill  sets  up  several  distinct  grounds  upon  which  it 

is  proposed  to  contest  the  probate  of  the  will  of  B.  L.  Barksdale.    The 

sufficiency  of  the  second  ground  (marked  "B")  is  not  challenged  by 

the  demurrer,  and,  indeed,  could  not  be.    The  demurrer  goes  to  the 

f  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  96. 
«  The  statement  of  facts  is  omitted. 


182  PROBATE    OF    WILLS 

whole  bill,  and,  if  sustained,  would  have  the  effect  of  putting  out  of 
court  (unless  amended)  a  bill  which  confessedly  shows  a  good  and  suf- 
ficient cause  for  setting  aside  the  probate.  The  court  could  not  do  oth- 
erwise than  overrule  it.  If  it  was  desired  to  test  the  sufficiency  of  the 
other  grounds  set  up,  the  demurrer  should  have  been  directed  to  them 
severally.  It  results  that  the  decretal  order  overruling  the  demurrer 
must  be  affirmed. 

It  was  evidently  the  design  and  expectation  of  the  parties  to  obtain 
on  this  appeal  the  opinion  of  this  court  upon  the  sufficiency,  on  de- 
murrer, of  the  several  grounds  of  contest  as  they  are  set  up  in  the  bill. 
Indeed,  no  reference  is  made  in  the  brief  for  appellees  to  the  point 
that  the  demurrer,  going  to  the  whole  bill,  does  not  properly  present 
the  questions  intended  for  decision,  but  those  questions  are  argued  upon 
their  merits  as  if  properly  presented.  We  will  therefore  state  our  opin- 
ion upon  them. 

1.  Ground  A,  "that  said  will  was  not  duly  executed,"  is  sufficient. 
Upon  the  probate  of  a  will  in  the  probate  court,  whether  contested 
or  not,  and  on  a  contest  in  chancery,  like  that  now  before  us,  the  prime 
step  to  be  taken  on  the  hearing,  is  for  the  proponent,  in  the  one  case, 
and  the  contestee,  in  the  other,  to  prove  the  due  execution  of  the  will 
in  manner  and  form  as  required  by  the  statute.     The  allegation  in 
question  is  sufficiently  specific  to  keep  that  requirement  in  force  in  the 
present  proceeding. 

2.  Grounds  C,  E,  F,  and  L  charge,  in  general  terms,  first,  that  the 
will  was  procured  by  undue  influence  by  Amanda  Barksdale,  one  of  the 
devisees  under  the  alleged  will ;  and,  next,  by  fraud  on  the  part  of  said 
Amanda.    Neither  the  particular  undue  influence  and  fraud,  nor  how 
the  same  were  exerted,  are  stated.     It  is  conceded  that,  according  to 
the  general  rules  of  equity  pleading  in  other  cases,  these  averments  are 
not  sufficiently  specific,  but  it  is  contended  that  on  the  contest  of  a  will 
the  entire  laboring  oar  is  upon  him  who  asserts  the  validity  of  the 
will,  and  the  contestant  need  do  no  more  than  to  allege  generally  its 
invalidity.     Our  old  cases  of  Johnson  v.  Glasscock,  2  Ala.  218,  and 
Johnson  v.  Hainesworth,  6  Ala.  443,  are  relied  upon  to  support  the  con- 
tention.    These  cases  hold  that  under  the  statutes  then  existing  the 
complainant  need  only  allege  the  facts  showing  such  relationship  on 
his  part  to  the  deceased  as  entitles  him  to  contest  the  supposed  will,  with 
a  prayer  for  relief.    At  that  time  there  was  no  statute  prescribing  the 
allegations,  written  or  otherwise,  necessary  to  be  made  in  order  to 
inaugurate  and  try  the  validity  of  a  will.    The  methods  of  procedure 
were  under  the  control  of  the  court.     Pursuing  the  principle  that  the 
burden  was  upon  him  who  sets  up  the  validity  of  the  instrument  as 
the  will  of  the  alleged  testator,  it  was  held,  as  above  stated,  that  the 
contestant  was  required  to  allege  nothing  more  than  his  interest  enti- 
tling him  to  contest. 

Article  3,  tit.  4,  pt.  2,  of  the  present  Code,  is  devoted  to  the  subject 
of  contesting  the  validity  of  wills.  The  first  section  of  this  article 


PROCEEDINGS    WHEN    WILL   CONTESTED  183 

(section  1989)  provides  that:  "A  will,  before  the  probate  thereof, 
may  be  contested  by  any  person  interested  therein,  or  by  any  person 
who,  if  the  testator  had  died  intestate,  would  have  been  an  heir  or  dis- 
tributee of  his  estate,  by  filing  in  the  court  where  it  is  offered  for  pro- 
bate allegations  in  writing  that  the  will  was  not  duly  executed,  or  of  the 
unsoundness  of  mind  of  the  testator,  or  of  any  other  valid  objections 
thereto;  and  thereupon  an  issue  must  be  made  up,  under  the  direction 
of  the  court,  between  the  person  making  the  application,  as  plaintiff, 
and  the  person  contesting  the  validity  of  the  will,  as  defendant;  and 
such  issue  must,  on  application  of  either  party,  be  tried  by  a  jury." 
Then  follow  provisions  for  the  trial  and  the  rendition  of  judgment  in 
the  probate  court,  following  which,  in  the  same  article,  is  section  2000, 
under  which  this  bill  is  filed,  providing  that:  "Any  person  interested 
in  any  will,  who  has  not  contested  the  same  under  the  provisions  of 
this  article,  may,  at  any  time  within  five  years  after  the  admission  of 
such  will  to  probate  in  this  state,  contest  the  validity  of  the  same  by 
bill  in  chancery,  in  the  district  in  which  such  bill  was  probated,  or  in 
the  district  in  which  a  material  defendant  resides."  It  is  manifest  that 
these  provisions  were  introduced  to  change  the  policy  of  the  law  ob- 
taining prior  to  their  adoption,  by  requiring  the  contestant,  by  written 
procedure,  to  set  forth  the  grounds  upon  which  he  expects  to  contest 
the  validity  of  the  proposed  will,  and  to  confine  the  trial,  after  proof  of 
the  due  execution  of  the  will,  to  the  issues  which  his  allegations  tender. 
The  purpose  of  the  change  was  that  which  underlies  the  law  of  plead- 
ing generally, — that  the  parties  may  be  certainly  advised  of  the  issues 
to  be  tried,  and  the  court  enabled  to  proceed  intelligently  in  adjudicat- 
ing their  rights. 

In  subservience  of  this  general  rule,  it  is  a  familiar  principle  of  equi- 
ty pleading  that  the  complainant  must  distinctly  allege  the  facts  upon 
which  he  relies  for  relief.  Mere  general  statements  or  conclusions  will 
not  suffice.  Thus,  if  fraud  be  relied  upon,  the  general  charge  that  a 
fraud  was  committed  is,  of  course,  not  sufficient,  but  the  particular 
facts  constituting  the  fraud  must  be  stated,  otherwise  the  opposite 
party  would  be  practically  without  information  of  what  he  was  called 
upon  to  defend.  Upon  a  contest  of  a  will,  when  fraud  or  undue  influ- 
ence is  relied  upon,  the  burden  is  upon  the  contestant  to  prove  it.  The 
opposite  party  is  only  required  to  prove  the  due  execution  of  the  will 
according  to  the  statute.  It  is  as  essential,  therefore,  that  such  party 
be  informed,  by  distinct  averments,  of  the  facts  constituting  the  fraud 
or  undue  influence,  so  as  to  be  prepared  to  meet  them,  as  that  such  in- 
formation be  so  given  to  any  party  in  any  judicial  proceeding;  hence 
there  can  be  no  well-founded  reason  for  holding  that  the  legislature 
intended,  when  it  required  that  the  contest  be  in  writing,  and  set  forth 
the  grounds  relied  on,  that  only  a  general  statement  of  such  grounds, 
conveying  to  the  opposite  party  practically  no  information  of  value  to 
him  in  the  preparation  of  his  cause,  should  be  sufficient.  If  such  was 
the  legislative  intent,  the  change  in  the  law  scarcely  served  a  useful 


184  PROBATE    OP    WILLS 

purpose.    We  are  of  opinion  that  the  bill  should  set  forth  the  facts 
constituting  the  fraud  or  undue  influence  charged. 

In  respect  of  the  revocation  of  the  will  in  question,  as  alleged  in  the 
amendment  to  the  bill,  we  think  the  allegation  that  the  alleged  testator 
"made  and  executed,  in  the  presence  of  witnesses,  as  required  by  law, 
another  will,  covering  the  same  property,  thereby  revoking  said  alleged 
will,"  sufficiently  charges  the  execution  of  such  other  will.  The  statute 
expressly  defines  what  constitutes  the  execution  of  a  will,  and  a  party 
setting  up  the  execution  of  a  will  would  be  required  to  prove,  under  the 
allegation  above  quoted,  that  the  requirements  of  the  statute  were 
complied  with.  We  think  the  allegation  of  the  said  amendment  that 
the  said  second  will  "was  itself  destroyed  by  said  Barksdale  with  the 
intention  of  revoking  it"  is  the  legal  equivalent  of  an  allegation  that  tes- 
tator burned,  tore,  canceled,  or  obliterated  the  will  with  such  intent, 
as  specified  in  section  1968  of  the  Code.  Affirmed. 


3.  COSTS' 


In  re  BUMP'S  ESTATE. 
(Supreme  Court  of  California,  1907.    152  Cal.  271,  92  Pac.  642.) 

In  the  matter  of  the  estate  of  Nelson  Bump,  deceased.  From  so 
much  of  an  order  as  charged  the  estate  of  the  deceased  with  the  costs 
of  the  contestant  in  a  will  contest,  and  which  prevented  the  proponents 
from  recovering  their  costs  against  the  contestant,  J.  H.  Thomas  and 
another,  proponents,  appeal.  Affirmed. 

SHAW,  J.  The  will  of  Nelson  Bump,  deceased,  was  offered  for 
probate  by  Jesse  H.  Thomas,  the  executor,  and  Sarah  Angelene  Dean, 
the  executrix,  named  in  the  will.  Sarah  L.  Bump,  the  widow  of  de- 
ceased, filed  a  contest  thereto.  After  a  trial  the  contest  was  denied 
and  the  will  admitted  to  probate.  The  bill  of  exceptions  states  that  in 
the  order  admitting  the  will  to  probate  "said  court  did  order  that  the 
costs  of  said  contest  be  taxed  against  said  estate."  The  record  con- 
tains no  copy  of  the  order  and  no  further  statement  of  its  provisions 
in  regard  to  costs.  Thereafter,  in  due  time,  the  proponents  of  the  will 
filed  a  cost  bill  in  the  sum  of  $1,701.70  and  the  contestant  filed  a  cost 
bill  claiming  the  sum  of  $168.20  as  her  costs  in  prosecuting  the  unsuc- 
cessful contest.  The  proponents  and  beneficiaries  under  the  will  ap- 
peal from  "so  much  of  the  order  and  that  portion  of  the  order  *  *  * 
as  charges  said  estate  with  the  costs  of  said  contestant,  or  which  allows 
or  permits  said  contestant  to  recover  her  costs  of  said  contest  as 
against  said  estate,  or  prohibits  or  prevents  said  proponents  from  recov- 

»  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  97. 


PROCEEDINGS   WHEN   WILL   CONTESTED  185 

ering  their  costs  as  against  said  contestant."  The  quotation  is  from 
the  notice  of  appeal. 

It  has  been  held  that,  when  there  is  a  successful  contest  after  pro- 
bate, the  court,  in  its  discretion,  may  allow  to  the  executors,  out  of  the 
estate,  their  reasonable  costs  and  expenditures  in  endeavoring  to  up- 
hold the  will  of  which  they  had  been  appointed  the  executors  (Estate  of 
McKinney,  112  Cal.  447,  44  Pac.  743) ;  also  that  where  there  is  a  suc- 
cessful contest  before  probate,  and  the  legatees  or  executors  acted  in 
good  faith  and  upon  probable  grounds  in  proposing  the  will  for  pro- 
bate, the  court  may,  in  its  discretion,  allow  to  the  unsuccessful  pro- 
ponents their  ordinary  costs  incurred  in  endeavoring  to  establish  the 
will,  and  make  the  same  a  charge  against  the  assets  of  the  estate  (Es- 
tate of  Olmstea.d,  120  Cal.  452,  52  Pac.  804).  Section  1720  of  the 
Code  of  Civil  Procedure  provides  that  in  probate  proceedings  in  gen- 
eral the  superior  court  "may,  in  its  discretion,  order  costs  to  be  paid  by 
any  party  to  the  proceedings,  or  out  of  the  assets  of  the  estate,  as  jus- 
tice may  require."  We  can  conceive  of  cases  in  which  the  duty  of  a 
widow,  or  other  person  entitled  to  administration  of  an  estate  in  case 
of  intestacy,  to  contest  the  probate  of  an  alleged  will,  might  be  as  plain 
and  urgent,  under  the  circumstances  known  to  such  person,  as  would 
be  the  duty  of  an  executor  already  appointed,  or  one  nominated  as 
executor,  in  a  will  offered  for  probate,  or  a  legatee  thereunder,  to  op- 
pose a  contest  and  endeavor  to  establish  such  will.  The  provision  of 
the  Code  above  quoted  is  very  general  in  its  terms,  and  applies  as  well 
to  a  party  contesting  a  will  as  to  one  proposing  it.  It  puts  the  entire 
matter  of  costs  within  the  sound  discretion  of  the  court,  and  we  think 
it  must  be  held  that  such  discretionary  power  extends  to  and  includes 
the  case  of  an  unsuccessful  contestant.  It  is  proper  to  say,  however, 
that  such  cases  must  be  rare  and  the  circumstances  must  be  peculiar  in- 
deed to  justify  such  an  order  in  favor  of  a  contestant  who  has  failed, 
and  that,  as  this  court  under  its  rules  is  sometimes  compelled  to  sus- 
tain a  discretionary  order  where  it  has  grave  doubts  of  its  propriety, 
the  trial  court  should  use  great  caution  and  make  such  orders  only  in 
very  extreme  cases  presenting  great  hardship,  and  where  it  appears 
that  the  contestant  has  acted  in  the  utmost  good  faith  throughout  the 
proceeding. 

There  is  here  no  attempt  to  set  forth  the  circumstances  and  have  this 
court  decide  whether  or  not  the  discretion  was  abused.  The  case  is 
presented  upon  the  proposition  that  the  power  does  not  exist  in  any 
case,  or  under  any  circumstances,  to  make  the  costs  of  an  unsuccessful 
contest  payable  out  of  the  assets  of  the  estate.  The  presumptions  are 
all  in  favor  of  the  action  of  the  court  below.  The  power  exists,  and 
in  the  absence  of  any  showing  to  the  contrary  we  must  presume  that  it 
was  properly  exercised. 

The  same  reasons  extend  to  the  proposition  that  the  court  erred  in 
refusing  to  give  the  proponents  judgment  against  the  contestant  for 


186  PROBATE    OF    WILLS 

their  costs.  As  a  mere  matter  of  discretionary  power  the  court  could 
do  this,  and,  as  no  attempt  is  made  to  show  an  abuse  of  discretion,  the 
order  must  stand.  If  the  estate  had  been  insolvent,  perhaps  it  would 
have  been  an  error  to  refuse  such  judgment  for  costs;  but  it  is  not 
claimed  that  the  assets  are  not  ample,  or  that  the  estate  is  not  solvent. 

It  is  not  claimed  that  the  cost  bill  of  the  contestant  is  erroneous  or 
excessive.  Nothing  in  this  opinion  is  to  be  understood  as  an  intimation 
that  the  filing  of  the  cost  bill  by  the  proponents,  and  the  failure  of  ei- 
ther party  to  object  thereto,  will  constitute  an  adjudication  that  the 
costs  they  claim  are  all  properly  chargeable  under  the  order. 

The  part  of  the  order  appealed  from  is  affirmed. 


V.  Effect  of  Probate10 


SUMNER  v.  CRANE. 

( Supreme  Judicial  Court  of  Massachusetts,  1892.     155  Mass.  483,  29  N.  E. 
1151,   15   L.   R.   A.  447.) 

Proceedings  by  Samuel  Crane,  executor,  to  probate  the  will  of  Sallie 
Richards  Sumner,  deceased.  From  a  decree  of  the  probate  court  of 
Norfolk  county,  admitting  the  will  to  probate,  Edward  Sumner  ap- 
pealed to  the  supreme  judicial  court.  The  single  justice  who  tried 
the  case  sustained  the  decree,  and  reported  the  case  for  the  full  court. 
Decree  affirmed. 

The  material  part  of  the  report  is  as  follows :  "The  appellant  offer- 
ed to  prove  that  the  testatrix  had  made  an  oral  contract  with  her  sis- 
ters, Lucy  Sumner,  Clarissa  Sumner,  and  Elvira  S.  Crane,  to  devise 
and  bequeath  the  property  covered  by  the  will  and  codicil  primarily 
to  such  sisters,  and  otherwise  differently  than  the  property  is  dis- 
posed of  by  the  will  and  codicil,  and  that  the  testatrix  had  inherited 
all  the  property  of  her  three  sisters  under  wills  made  in  accordance 
with  that  oral  contract,  and  contended  that  the  fact,  if  proved,  would 
prevent  the  probate  of  the  instrument  before  me.  In  answer  to  a 
question  by  me,  it  was  admitted  that  the  testatrix  did  not  part  with 
her  right  to  change  the  executor  to  her  will,  and  I  thereupon  ruled 
that  the  alleged  contract  would  not  prevent  the  probate  of  the  instru- 
ment before  me,  although,  if  said  contract  had  been  carried  out,  the 
property  would  have  gone  to  different  persons  from  the  present 
devisees  and  legatees,  and  refused  to  receive  the  evidence  so  far  as 
offered  for  that  purpose  only,  and  the  appellant  excepted.  The  appel- 
lant stated  that  the  testatrix  had  executed  a  will  in  the  year  1849,  in 

10  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  97. 


EFFECT   OF   PROBATE  187 

pursuance  of  the  alleged  contract,  which  will  had  not  been  revoked 
otherwise  than  by  later  wills  made  in  violation  of  the  contract,  and 
asked  delay  in  order  that  they  might  offer  that  will  for  probate,  so 
that  the  two  cases  might  proceed  pari  passu.  I  ruled  that  if  such  a 
contract  had  been  made,  and  a  will  executed  in  pursuance  of  it,  the 
rights  of  the  appellant,  if  any,  would  be  preserved  by  way  of  contract 
or  trust,  and  on  that  ground  alone  refused  the  application." 

LATHROP,  J.  The  first  ruling  of  the  single  justice  of  this  court  upon 
whose  report  the  case  comes  before  us  was  apparently  based  upon 
the  theory  that,  as  the  testatrix  did  not  part  with  her  right  to  change 
the  executor  of  her  will,  the  will  was  entitled  to  be  admitted  to  pro- 
bate. There  is  not  doubt  of  the  correctness  of  the  ruling.  A  will  is 
valid  which  merely  appoints  an  executor.  In  re  Goods  of  Lancaster, 
Swab.  &  T.  464;  In  re  Goods  of  Howard,  L.  R.  1  Prob.  &  Div.  636; 
Brownrigg  v.  Pike,  L.  R.  7  Prob.  Div.  61.  And  this  is  so,  even 
though  the  executor  renounces  probate.  In  re  Goods  of  Jordan,  L. 
R.  1  Prob.  &  Div.  555. 

The  appellant,  however,  contends  that  the  probate  of  the  will 
should  be  limited  to  the  nomination  of  the  executor.  There  are  nu- 
merous cases,  indeed,  in  this  commonwealth,  where  partial  probate  of 
a  will  has  been  allowed,  but  these  are  cases  where  there  has  been 
either  a  partial  legal  incapacity  on  the  part  of  the  testator,  or  where, 
there  has  been  fraud  or  undue  influence  as  to  a  specific  clause  in  a 
will.  Thus,  at  a  time  when  a  minor  could  make  a  bequest  of  per- 
sonal property,  but  could  not  devise  real  estate,  his  will,  which  cov- 
ered both,  was  admitted  to  probate  as  to  the  personal  property  only. 
Deane  v.  Littlefield,  1  Pick.  239.  The  same  course  has  been  pursued 
in  the  case  of  a  will  of  a  married  woman,  if  her  legal  capacity  is  lim- 
ited. Heath  v.  Withington,  6  Cush.  497;  Holman  v.  Perry,  4  Mete. 
492;  Ela  v.  Edwards,  16  Gray,  91,  101.  As  to  fraud  or  undue  in- 
fluence, see  Ogden  v.  Greenleaf,  143  Mass.  349,  353,  9  N.  E.  745. 

The  learned  counsel  for  the  appellant  has  called  our  attention  to  no 
case  where  full  probate  of  a  will  has  not  been  allowed,  because  of 
the  fact  that  the  testator  had  made  a  contract  to  dispose  of  his  prop- 
erty in  some  other  way.  In  Holman  v.  Perry,  ubi  supra,  Mr.  Justice 
Dewey  states  the  rule  of  law  to  be  as  follows:  "The  probate  of  a 
will  does  not  necessarily  settle  any  question  of  title  to  real  estate  aris- 
ing under  such  will.  It  establishes  the  due  execution  of  the  will  by 
the  testator,  and  is  conclusive  thus  far ;  but  as  to  his  title,  or  his  right 
to  devise  the  property  named  in  the  will,  it  binds  nobody  who  has  any 
adverse  interest.  Questions  of  that  character  are  to  be  settled  by 
proper  proceedings,  at  law  or  in  equity.  In  Pohlman  v.  Untzellman, 
2  Lee,  Ecc.  319,  one  Peter  Untzellman,  on  October  6,  1747,  made  a 
will  by  way  of  provision  for  his  intended  wife,  and  for  any  children 
he  and  she  might  have,  nominated  her  as  sole  executrix,  and  gave  her 
all  his  estate.  In  1755  he  made  a  new  will,  giving  his  wife  £5  only, 
and.,  having  no  children,  left  the  residue  to  his  sisters.  It  was  con- 


188  PROBATE    OF    WILLS 

tended,  on  behalf  of  the  widow,  that  the  will  of  1747  was  a  settle- 
ment in  consideration  of  marriage,  and  was  a  bar  to  any  other  will, 
and  that  the  will  of  1755  was  void.  The  widow  also  contended  that 
she  was  entitled  to  probate  of  the  first  will.  Sir  George  Lee,  in  de- 
livering judgment,  said :  "But  I  was  of  opinion,  if  the  first  will  could 
operate  as  marriage  articles  or  a  deed,  she  must  go  to  the  court  of 
chancery  to  have  it  enforced  there;  that  the  question  before  me  was 
only  upon  the  factum  of  the  two  wills;  that,  considered  as  wills,  the 
latter,  being  fully  proved,  did  clearly  revoke  the  former;  and  I  could 
not  determine  that  the  deceased  had,  by  the  act  of  the  6th  October, 
1747,  disabled  himself  from  making  any  subsequent  will."  See,  also, 
Hughes  v.  Turner,  4  Hagg.  Ecc.  30,  52;  Brenchley  v.  Lynn,  2  Rob. 
Ecc.  441 ;  Hobson  v.  Blackburn,  Addams,  Ecc.  274. 

We  must  assume  that  the  will  of  1849  was  revoked  by  the  subse- 
quent will.  If  so,  the  appellant  was  not  entitled  to  a  delay  for  the 
purpose  of  offering  that  will  for  probate,  even  if  he  could  show  any 
excuse  for  not  presenting  it  before,  because,  if  the  former  will  was 
revoked  by  a  valid  will,  it  was  not  entitled  to  be  admitted  to  probate. 
The  rights  of  the  appellant,  if  any,  would,  however,  be  fully  protected, 
either  by  way  of  contract  or  trust;  and  the  ruling  was  right.  See 
cases  last  above  cited;  and  Izard  v.  Middleton,  1  Desaus.  (S.  C.) 
116;  Rivers  v.  Rivers,  3  Desaus.  (S.  C.)  190,  4  Am.  Dec.  609;  Anding 
v.  Davis,  38  Miss.  574,  77  Am.  Dec.  658 ;  Faxton  v.  Faxton,  28  Mich. 
159;  Carmichael  v.  Carmichael,  72  Mich.  76,  40  N.  W.  173,  1  L.  R. 
A.  596,  16  Am.  St.  Rep.  528 ;  Robinson  v.  Mandell,  3  Cliff.  169,  183, 
Fed.  Cas.  No.  11,959;  Smith  v.  Tuit,  127  Pa.  341,  17  Atl.  995,  14 
Am.  St.  Rep.  851;  Tuit  v.  Smith,  137  Pa.  35,  20  Atl.  579.  Decree 
affirmed. 


VI.  Evidence  to  Prove  Contents  of  Lost  or  Destroyed  Will 11 
CLARK  v.  TURNER. 

(Supreme  Court  of  Nebraska,  1897.    50  Neb.  290,  69  N.  W.  843,  38  L.  R.  A.  433.) 

IRVINE,  C.12  John  J.  Turner  was  an  elderly  citizen  of  the  city  of 
Lincoln,  blessed  with  a  pious  disposition  and  a  considerable  quantity 
of  this  world's  goods.  He  died  March  1,  1890,  leaving  him  surviv- 
ing two  sons,  William  J.  Turner  and  R.  Morris  Turner.  Some  time 
after  his  death  William  M.  Clark  and  Nahum  S.  Scott  propounded 
for  probate  what  purported  to  be  a  copy  of  John  J.  Turner's  last 
will  and  testament,  it  being  alleged  that  the  said  will  had  been  de- 

1 1  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed. )  §  99. 

12  Part  only  of  the  opinion  is  given. 


EVIDENCE  TO  PROVE  CONTENTS  OF  LOST  OB  DESTROYED  WILL    189 

posited  in  a  valise  belonging  to  the  testator,  which,  after  his  death, 
had  been  delivered  to  his  sons,  and  that  thereafter  it  was  claimed 
that  the  house  in  which  the  valise  had  been  kept  was  burglariously 
entered,  the  valise  cut  open,  and  its  contents  extracted.  The  pro- 
bate was  contested  by  the  two  sons.  The  result  of  the  proceedings 
in  the  county  court  does  not  appear  from  the  record.  The  case,  how- 
ever, was  appealed  to  the  district  court,  where,  as  a  result  of  what 
appears  to  have  been  a  third  trial  there,  a  verdict  was  rendered  in 
favor  of  the  contestants.  Judgment  was  rendered  denying  probate 
and  the  proponent  Clark,  the  proponent  Scott  having  died  pending 
the  proceedings,  prosecutes  to  this  court  proceedings  in  error  to 
reverse  that  judgment.  *  *  * 

The  difficulty  lies  in  the  proof  which  was  offered  as  to  the  con- 
tents of  the  will.  It  does  not  appear  that  any  person  ever  read  the 
will,  or  was  aware  of  any  portion  of  its  contents  except  through 
statements  made  by  Dr.  Turner.  The  strongest  evidence  is  that  of 
Captain  Scott,  to  the  effect  that  Dr.  Turner  came  to  his  office  de- 
claring that  he  had  made  his  will,  and  then  read  it  to  Captain  Scott, 
asking  him  whether  it  was  legal  in  form.  Captain  Scott  was  blind 
and  therefore  did  not  see  the  will  himself,  so  that  his  testimony 
amounts  to  nothing  more  than  a  repetition  of  Dr.  Turner's  declara- 
tions as  to  its  contents.  In  addition  to  this  there  is  evidence  of  a 
few  declarations  made  to  others  subsequently  as  to  the  effect  of  dif- 
ferent provisions  contained  in  the  will.  Dr.  Turner  told  Mr.  Clark 
that  he  and  Captain  Scott  were  named  as  executors.  He  told  Karen 
Rootham  that  he  had  provided  for  her ;  he  told  his  pastor,  Dr.  Curtis, 
something  in  regard  to  the  bequests  to  the  two  missionary  boards; 
beyond  this  there  is  no  evidence  as  to  the  contents  of  the  will.  Mr. 
Clark  had,  about  the  time  the  will  was  executed,  obtained  copies  of 
the  two  notes  referred  to.  Just  before  the  will  was  propounded  for 
probate  he  obtained  from  the  records  a  description  of  the  property 
covered  by  the  Morris  Turner  mortgage.  The  copy  propounded  was 
made  up  by  Captain  Scott's  dictating  to  Mr.  Clark  from  recollection 
of  Dr.  Turner's  declarations,  and  Mr.  Clark's  filling  in  the  descrip- 
tion of  the  notes  and  mortgage  from  the  memoranda  in  his  posses- 
sion. The  attestation  clause  was  copied  from  a  form  book.  We  do 
not  think  that  this  was  sufficient  evidence  of  the  contents  of  the  will, 
and  from  this  it  follows  that  the  verdict  was  the  only  one  which  could 
properly  be  returned  upon  the  evidence.  It  becomes,  therefore,  un- 
necessary for  us  to  consider  any  special  assignments  of  error  relating 
to  other  branches  of  the  case. 

The  precise  question  does  not  seem  to  have  often  arisen.  We  think 
all  the  cases  hold  that  the  declarations  of  a  testator  may  be  received 
in  evidence  to  prove  the  existence  of  a  will  and  in  proof  of  issues 
relating  to  the  testator's  competency  or  to  undue  influence,  but  it  has 
been  doubted  whether  such  declarations  may  be  received  to  estab- 
lish a  revocation.  It  follows  that  in  all  proceedings  to  probate  a  lost 


190  PROBATE    OF    WILLS 

will,  such  declarations  are  admissible  in  evidence  because  the  existence 
of  the  will  must  necessarily  be  established  by  some  indirect  method. 
The  declarations  having  been  admitted  for  that  purpose  their  suffi- 
ciency to  establish  the  contents  of  the  will  is  another  question. 

In  England,  prior  to  the  leading  case  of  Sugden  v.  Lord  St.  Leon- 
ards, L.  R.  1  P.  D.,  154,  it  was  considered  that  the  declarations  were 
not  admissible  as  tending  to  prove  the  contents.  Doe  v.  Palmer,  16 
Q.  B.  (Eng.)  747,  turned  upon  the  question  whether  an  interlinea- 
tion had  been  made  before  or  after  the  execution  of  the  will,  and  it 
was  held  that  the  testator's  declarations  as. to  his  intentions  made 
before  the  execution  of  the  will  were  admissible,  but  the  declarations 
made  after  its  execution  were  not.  Quick  v.  Quick,  3  Swab.  &  T. 
(Eng.)  442,  was  a  case  startlingly  like  that  at  bar  in  some  points. 
The  sole  evidence  of  the  contents  of  the  will  was  the  testator's  dec- 
laration. There  was  the  same  fact  of  the  will  being  kept  in  a  bag 
and  of  its  being  taken  by  burglars.  The  court  held  that  there  was 
a  failure  of  proof,  holding  also  that  the  declarations  were  incompetent. 
The  court  of  appeals,  however,  in  Sugden  v.  Lord  St.  Leonards, 
overruled  Quick  v.  Quick  and  distinctly  held  such  declarations  were 
admissible.  The  will  in  question  was,  however,  proved  by  much  other 
evidence;  Miss  Sugden,  the  testator's  daughter,  had  not  only  heard 
the  will  read  but  she  had  herself  read  it  a  number  of  times  and  was 
able  to  testify  in  much  detail  as  to  its  contents  from  such  personal 
inspection ;  moreover,  not  less  than  eight  codicils  were  found,  the 
terms  of  these  all  tending  to  corroborate  her  as  to  the  contents  of 
the  original  will.  In  addition  to  this  proof  there  was  the  evidence  of 
the  testator's  declarations  as  to  the  will's  contents.  The  long  and 
exhaustive  opinions  are  directed  only  incidentally  to  the  admissibility 
of  the  declarations.  The  crucial  question  having  been  whether  all  the 
evidence  was  sufficient  to  establish  the  will,  the  case,  therefore,  falls 
far  short  of  holding  that  the  contents  of  a  lost  will  may  be  proved 
solely  by  the  declarations  of  the  testator.  Its  effect  is  merely  that 
such  declarations  are  admissible  to  corroborate  more  direct  evidence. 
This  is  the  construction  given  the  case  by  the  house  of  lords  in 
Woodward  v.  Goulstone,  11  App.  Cas.  (Eng.)  469,  where  the  declara- 
tions of  the  testator  were  held  insufficient  alone  to  establish  the  will. 
An  intimation  was  given  that  Sugden  v.  Lord  St.  Leonards  was  not 
considered  free  from  doubt  and  the  question  there  presented  left 
open.  The  importance  of  interests  involved  in  probate  cases  in  Eng- 
land is  such  that  the  decisions  of  English  courts  on  such  subjects  are 
entitled  to  great  weight,  and  we  may  safely  say  that  the  result  of  the 
English  cases  is  that  the  contents  of  a  lost  will  cannot  be  established 
solely  by  the  declarations  of  the  testator,  although  such  declarations 
are  now  deemed  admissible  for  the  purpose  of  corroboration 

The  American  cases  relied  upon  to  support  proponents'  theory  are, 
when  examined,  in  strict  accordance  with  the  English  rule.  In  re 
Page,  118  111.  576,  8  N.  E.  852,  59  Am.  Rep.  395,  expressly  follows 


EVIDENCE  TO  PROVE  CONTENTS  OP  LOST  OR  DESTROYED  WILL    191 

Sugden  v.  Lord  St.  Leonards,  and  comes  within  the  true  doctrine  of 
that  case,  because  the  declarations  in  that  case  merely  went  to  cor- 
roborate the  testimony  of  the  lawyer  who  drew  the  will  and  who 
produced  a  copy  thereof.  Southworth  v.  Adams,  11  Biss.  (U.  S.) 
256,  Fed.  Cas.  No.  13,194,  In  re  Hope,  48  Mich.  518,  12  N.  E.  682, 
and  In  re  Lambie,  97  Mich.  49,  56  N.  W.  223,  are  cases  of  the  same 
character,  the  declarations  •  being  corroborative  merely,  and  not  re- 
lied on  in  themselves  to  establish  the  will.  In  Colligan  v.  McKernan, 
2.  Dem.  Sur.  (N.  Y.)  421,  a  will  had  been  propounded  for  probate.  It 
was  contended  that  there  was  a  subsequent  will  revoking  the  former 
one,  but  the  subsequent  will  was  lost.  The  evidence  offered  to  estab- 
lish the  second  will  consisted  in  the  testimony  of  a  clerk  in  a 
lawyer's  office,  who  heard  the  scrivener  read  it  in  the  presence  of  the 
testator  at  the  time  of  its  execution.  The  court  distinctly  held  that 
this  testimony  was  merely  hearsay,  relating,  in  fact,  to  the  scrivener's 
declarations,  and  was  not  equivalent  to  testimony  by  one  who  had 
himself  read  the  will.  In  Clark  v.  Morton,  5  Rawle,  235,  28  Am. 
Dec.  667,  the  supreme  court  of  Pennsylvania  held  that  the  contents 
of  a  will  cannot  be  established  by  declarations  of  the  testator,  in  the 
absence  of  the  corpus  of  the  will  and  of  all  evidence  that  the  witness 
had  himself  seen  it.  The  court  said  that  to  permit  a  will  to  be  so 
established  would  defeat  the  object  of  the  statutes  requiring  wills  to 
be  written.  In  Chisholm's  Heirs  v.  Ben,  7  B.  Mon.  (Ky.)  408,  the 
testimony  was  of  the  same  character  as  in  this  case.  The  will  had  been 
read  by  the  testator  to  the  witness,  and  there  was  subsequent  declara- 
tions by  him  as  to  its  contents.  The  court  rejected  this  evidence  as 
insufficient.  Mercer's  Administrators  v.  Mackin,  14  Bush  (Ky.)  434, 
reaffirms  Chisholm  v.  Ben.  The  argument  has  been  frequently  ad- 
vanced that  such  declarations  are  admissible  as  self-disserving  declara- 
tions of  a  decedent.  Mercer  v.  Mackin  and  Clark  v.  Morton  discuss 
this  proposition,  but  demonstrate  that  such  declarations  are  not  ad- 
missible on  that  ground.  Chisholm  v.  Ben,  supra,  intimated  that  on 
adequate  proof  that  the  will  had  been  fraudulently  suppressed  by  the 
heirs,  the  evidence  referred  to  might  be  sufficient  by  virtue  of  the 
maxim  "Omnia  prassumuntur  contra  spoliatorem."  This  maxim  is 
not  easy  to  apply.  It  has  sometimes  been  held  to  justify  the  produc- 
tion of  slighter  proof  than  would  otherwise  be  required.  Its  most 
frequent  application  is  for  the  purpose  of  allowing  secondary  evi- 
dence. It  would  certainly  be  very  dangerous  to  extend  it  so  far  as 
to  relieve  a  party  charged  with  proving  the  contents  of  a  written  in- 
strument from  all  obligation  to  produce  some  evidence  of  a  competent 
character;  but  this  phase  of  the  case  was  not  submitted  to  the  jury 
by  any  instruction  given  or  asked,  at  least  so  far  as  the  contents  of 
the  will  are  concerned. 

The  general  verdict  for  the  contestants  precludes  us  from  examin- 
ing the  evidence  on  this  point  on  the  theory  that  spoliation  by  the  con- 
testants was  established.  The  policy  of  the  statute  of  wills,  like  the 


192  PROBATE    OF    WILLS 

statute  of  frauds,  is  that  it  is  better  that  occasional  injustice  should 
be  done,  in  exceptional  cases,  through  a  failure  of  legal  proof,  than 
that  transactions  within  the  statutes  should  in  all  cases  be  left  to  the 
uncertainties  of  parol  evidence.  So  the  courts  in  giving  effect  to 
the  statutes  should  pursue  the  same  policy  and  should  avoid  meeting 
hard  cases  by  adopting  rules  which,  generally  applied,  would  defeat 
the  object  of  the  legislature.  On  no  subject,  perhaps,  are  statutes  so 
strict  in  requiring  a  writing  executed  and  attested  in  certain  forms 
as  in  the  case  of  wills,  and  while  it  is  firmly  established  that  a  lost 
will  may  be  proved  by  secondary  evidence,  the  courts  have  always 
required  such  evidence  to  be  direct,  clear  and  convincing.  As  said 
by  the  supreme  court  of  the  United  States  in  Lea  v.  Polk  County  Cop- 
per Co.,  21  How.  493,  16  L.  Ed.  203 :  "Courts  of  justice  lend  a  very 
unwilling  ear  to  statements  of  what  dead  men  have  said."  Such  evi- 
dence is  always  considered  dangerous,  and  subject  to  the  closest 
scrutiny.  We  think  it  would  be  in  the  highest  degree  dangerous,  and 
would  be  violative  of  the  object  and  spirit  of  the  statute,  should  we 
hold  that  the  existence  and  contents  of  an  alleged  will  might  be  estab- 
lished solely  by  testimony  of  the  testator's  declarations.  Notwith- 
standing Sugden  v.  Lord  St.  Leonards  and  other  cases  in  that  line, 
we  believe  the  language  of  the  court  of  appeals  of  Kentucky  in  Chis- 
holm  v.  Ben  remains  true:  "The  books  of  reports  contain  many 
cases  in  which  wills  lost  or  destroyed  have  been  offered  for  probate 
upon  parol  or  other  secondary  evidence  of  their  contents,  and  many 
in  which  such  wills  were  established,  but  in  an  examination  of  these 
cases,  as  extensive  as  opportunity  would  allow,  we  have  found  none 
in  which  there  does  not  seem  to  have  been  the  evidence  of  witnesses 
who  knew,  or  might  be  presumed  to  have  known,  the  contents  of  the 
will  from  their  own  inspection ;  none  in  which  the  declarations  or  even 
professed  reading  of  the  decedent  have  been  held  to  be  alone  suffi- 
cient on  this  point;  and  none  which  would  sanction  their  admission 
upon  the  question  of  the  contents  of  the  will  with  any  other  effect  than 
as  merely  corroborative  of  the  more  direct  evidence." 

As  already  indicated,  this  view  leads  to  affirmation  of  the  judgment, 
because  the  verdict  was  the  only  one  warranted  by  the  evidence. 
*  *  *  Judgment  affirmed. 


PROBATE   OR   RECORD   OF   FOREIGN   WILLS  193 


VII.  Probate  or  Record  of  Foreign  Wills18 


In  re  CLARK'S  ESTATE. 

(Supreme  Court  of  California,  1905.     148  Cal.  108,  82  Pac.  760,  1  L.  R.  A. 
[N.  S.]  996,  113  Am.  St.  Rep.  197,  7  Ann.  Cas.  306.) 

HENSHAW,  J.14  Julius  H.  Clark  died  in  the  county  of  Yolo,  in  the 
state  of  California,  on  the  14th  day  of  March,  1904,  and  was  a  resi- 
dent of  that  county  at  the  time  of  his  death.  He  had  resided  in  the 
county  for  more  than  20  years  continuously  prior  to  his  death.  On 
the  13th  of  July,  1872,  while  visiting  in  Keene,  N.  H.,  he  executed  his 
last  will  and  testament.  This  will  was  executed  in  conformity  with 
the  laws  of  the  state  of  New  Hampshire,  and  also  in  conformity  with 
the  laws  of  the  state  of  California.  It  was  filed  by  the  executrix 
named  therein  in  the  office  of  the  county  clerk  of  Yolo  county,  with  a 
petition  praying  for  the  probate  thereof.  In  addition  to  having  been 
a  resident  of  Yolo  county  at  the  time  of  his  death,  the  deceased  left 
estate  in  that  county.  Subsequent  to  the  filing  of  the  will  and  petition 
the  superior  court  of  Yolo  county  in  probate  made  an  order  per- 
mitting the  original  will  to  be  withdrawn  and  forwarded  to  Keene, 
N.  H.  The  will  was  then  probated  in  New  Hampshire,  and  thereafter 
appellant  herein  filed  his  petition  in  the  superior  court  of  the  county  of 
Yolo,  asking  for  probate  of  the  same  will  upon  an  exemplified  copy 
from  the  probate  court  of  the  state  of  New  Hampshire.  The  superior 
court  of  Yolo  county  took  evidence  and  determined  that  at  the  time 
of  his  death  Clark  was  a  resident  of  Yolo  county.  This  finding  is  not 
in  dispute.  As  a  legal  consequence,  following  this  finding,  the  court 
concluded  that  Clark's  will  should  be  admitted  to  probate  originally 
in  the  superior  court  of  the  county  of  Yolo,  and  was  not  entitled  to 
admission  as  a  foreign  will.  It  denied  the  petition,  and  this  appeal  is 
taken. 

We  are  here  for  the  first  time  upon  a  direct  proceeding,  by  appeal 
from  an  order  refusing  probate  to  such  a  will,  called  upon  to  construe 
our  Code  provisions  governing  the  question.  We  say  that  we  are  for 
the  first  time  called  upon  in  direct  proceedings,  because,  as  will  here- 
after be  shown,  the  cases  in  which  the  question  may  be  considered  to 
have  arisen  were  either  cases  of  collateral  attack  or  cases  where  the 
precise  question  here  presented  was  not  made  an  issue,  and  therefore, 
under  well-settled  principles,  cannot  be  said  to  have  been  decided.  As 
all  the  provisions  of  the  Code  bearing  upon  a  single  subject-matter  are 

is  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  100. 
i*Part  only  of  the  majority  opinion  is  given  and  the  dissenting  opinions 
are  omitted. 

DUNM.CAS.  WILLS — 13 


194  PROBATE    OF    WILLS 

to  be  construed  together,  and  harmoniously,  if  possible,  it  may  be  well 
to  set  forth  the  sections  touching  the  probate  of  wills.  Section  1294 
of  the  Code  of  Civil  Procedure  declares :  "Wills  must  be  proved  and 
letters  testamentary  or  of  administration  granted:  (1)  In  the  county 
of  which  the  decedent  was  a  resident  at  the  time  of  his  death,  in  what- 
ever place  he  may  have  died."  Article  3,  c.  2,  of  the  same  title  (11) 
containing  section  1294,  above  quoted,  is  devoted  to  the  probate  of 
foreign  wills.  The  article  is  itself  entitled  "Probate  of  Foreign  Wills," 
and  section  1322  provides :  "All  wills  duly  proved  and  allowed  in  any 
other  of  the  United  States,  or  in  any  foreign  country  or  state,  may  be 
allowed  and  recorded  in  the  superior  court  of  any  county  in  which 
the  testator  shall  have  left  any  estate."  Section  1323,  following,  pro- 
vides that  notice  of  a  petition  for  proving  a  will  shall  be  given  when  a 
copy  of  the  will  and  the  probate  thereof,  duly  authenticated,  shall  be 
produced  by  the  executor,  or  by  any  other  person  interested  in  the 
will,  with  a  petition  for  letters.  Section  1324  provides  that  if  on  the 
hearing  it  appears  upon  the  face  of  the  record  that  the  will  has  been 
proved,  allowed,  and  admitted  to  probate  in  any  other  of  the  United 
States  or  in  any  foreign  country,  and  that  it  was  executed  according  to 
the  law  of  the  place  in  which  the  same  was  made,  or  in  which  the 
testator  was  at  the  time  domiciled,  or  in  conformity  with  the  laws  of 
this  state,  it  must  be  admitted  to  probate  and  have  the  same  force  and 
effect  as  a  will  first  admitted  to  probate  in  this  state.  Section  1299 
declares :  "Any  executor,  devisee  or  legatee  named  in  any  will,  or  any 
other  person  interested  in  the  estate,  may  at  any  time  after  the  death 
of  the  testator  petition  the  court  having  jurisdiction  to  have  the  will 
proved,  whether  the  same  be  in  writing,  in  his  possession  or  not,  or 
is  lost  or  destroyed,  or  beyond  the  jurisdiction  of  the  state." 

We  take  it  that  no  jurist,  feeling  himself  unembarrassed  by  earlier 
decisions,  and  at  liberty  to  treat  the  question  as  a  new  one,  would 
hesitate  to  say:  First,  that  section  1294  fixes  the  place  of  jurisdiction 
for  all  grants  of  original  probate,  while  section  1322  does  the  same  for 
grants  of  ancillary  probate  of  authenticated  copies  of  wills  proved  and 
probated  in  foreign  jurisdictions.  Second,  that  these  laws  mean  that 
the  will  of  a  resident  of  the  state  of  California  must  be  proved  orig- 
inally as  a  domestic  will  in  the  county  of  his  residence,  and  that,  so 
far  as  the  state  of  California  is  concerned,  it  cannot  be  primarily 
proved  elsewhere  and  brought  into  this  state  for  purposes  of  second- 
ary and  ancillary  administration.  In  construing  the  language  of  sec- 
tion 1322,  attention  would  be  called  to  the  fact  that  resort  with  pro- 
priety may  be  had  to  the  title  of  an  act,  and  often  must  be  had,  to 
determine  its  true  scope  and  intent;  that  the  title  of  section  1322,  re- 
lating exclusively  and  in  terms  to  foreign  wills,  will  be  read  in,  and  of 
necessity  must  be  read  in,  to  the  language  of  that  section,  so  that  "all 
wills"  means  and  should  be  read  to  mean  "all  foreign  wills" ;  and  that 
"foreign  wills,"  as  the  phrase  is  here  employed,  means  all  wills  other 
than  domestic  wills,  as  plainly  appears  from  the  language  of  the  sec- 


PROBATE   OR   RECORD   OF   FOREIGN   WILLS  195 

tion  itself,  which  describes  these  wills  as  all  those  "duly  proved  and 
allowed  in  any  other  of  the  United  States,  or  in  any  foreign  country 
or  state."  In  illustration,  it  might  be  pointed  out  that  if  the  Legisla- 
ture had  passed  an  act  under  the  title  of  "An  act  for  the  government 
of  boys  in  penal  and  reformatory  institutions,"  and  the  body  of  the 
act  had  begun  with  the  declaration,  "All  boys  shall,"  etc.,  it  would  un- 
hesitatingly be  said  that  the  phrase  "all  boys"  had  reference  exclu- 
sively to  all  boys  in  penal  and  reformatory  institutions  in  this  state. 
We  think  this  same  unhampered  jurist  would  point  out  that  the  mat- 
ter of  recognizing  the  judgment  of  a  foreign  state  rested  originally 
wholly  in  comity,  and  that,  saving  as  exacted  by  section  1,  art.  4,  of 
the  Constitution  of  the  United  States,  still  rests  wholly  in  comity.  It 
would  be  pointed  out  that  while  the  states  themselves,  as  has  this  state, 
have  by  appropriate  legislation,  provided  that  full  faith  and  credit 
should  be  given  to  the  adjudications  of  sister  states,  this  never  has 
meant  that  the  state  itself  has  parted  with  any  of  its  sovereign  rights, 
with  any  of  its  rights  of  primary  jurisdiction,  nor  with  any  of  the 
rights  of  its  subjects,  to  have  the  will  of  a  fellow-resident  originally 
proved  in  the  county  of  his  residence,  where,  presumptively,  he  is  the 
best  known,  and  where  they  may  the  better  litigate  all  questions 
touching  the  validity  of  the  solemn  instrument  offered  for  probate. 

Recognition  would  be  given  to  the  indisputable  principle  that  every 
state  has  plenary  power  with  respect  to  the  administration  and  dis- 
position of  the  estates  of  deceased  persons  as  to  all  property  of  such 
persons  found  within  its  jurisdiction.  Thus  the  courts  of  a  state  may 
and  do  grant  original  probate  upon  wills  of  deceased  nonresidents  who 
leave  property  within  that  state.  In  California  this  is  expressly  pro- 
vided for  by  section  1294  supra,  and  the  rule  as  to  other  states  is  the 
same.  1  Woerner's  Adm.  *439;  Shields  v.  Life  Ins.  Co.,  119  N.  C, 
380,  25  S.  E.  951 ;  Gordon's  Case,  50  N.  J.  Eq.  397,  26  Atl.  268;  Put- 
nam v.  Pitney,  45  Minn.  242,  47  N.  W.  790,  11  L.  R.  A.  41 ;  Walton 
v.  Hall's  Estate,  66  Vt.  455,  29  Atl.  803 ;  Jaques  v.  Korton,  76  Ala. 
238.  But  the  limitations  of  the  operation  of  this  principle  would  also 
be  recognized,  namely,  that  this  exercise  of  original  jurisdiction  over 
the  estates  of  nonresidents  affects,  and  can  affect,  only  the  property 
within  the  state.  The  judgment  admitting  the  will  to  probate  is  valid 
in  all  other  states  only  as  to  the  property  within  the  jurisdiction  of 
the  court  pronouncing  the  judgment.  It  has  no  extraterritorial  force, 
establishes  nothing  beyond  that,  and  does  not  dispense  with  nor  abro- 
gate the  formalities  and  proofs  which  may  be  exacted  by  other  juris- 
dictions in  which  the  deceased  also  left  property  subject  to  their  laws 
of  administration.  1  Woerner's  Adm.  *491.  And  in  this  connection 
it  would  be  further  pointed  out  that,  if  the  position  contended  for  by 
appellant  is  sound,  it  involves  upon  the  part  of  the  state  a  formal  sur- 
render of  so  much  of  its  sovereignty  and  right  of  primary  jurisdiction, 
conferring  that  upon  foreign  states,  and  at  the  same  time,  to  this  ex- 
tent, is  subversive  and  destructive  of  the  rights  of  its  citizens.  It 


19G  PROBATE    OF    WILLS 

would  be  said  with  exact  truth  that  the  full  faith  and  credit  which  is 
accorded  to  the  adjudications  of  sister  states  is  a  full  faith  and  credit, 
consonant  with  complete  jurisdiction  and  control  of  the  sovereign 
state  over  all  its  inhabitants,  and  over  all  the  property  within  its 
boundaries.  No  less  would  the  practical  hardships  of  such  an  inter- 
pretation be  pointed  out,  because,  if  it  were  so  that  all  wills,  therein 
including  domestic  wills  of  residents  of  this  state,  could  be  primarily 
proved  in  a  foreign  jurisdiction,  and  by  mere  exemplification  of  that 
proof  be  entitled  to  ancillary  probate  under  the  laws  of  this  state,  it 
would  result  in  numerous  instances  that  wills  of  residents  of  this  state 
would  be  probated  in  foreign  jurisdictions  without  the  knowledge  of 
those  in  interest  resident  in  this  state,  and  without  an  opportunity  to 
them  afforded  of  raising  any  question  of  fraud,  insanity,  undue  in- 
fluence, or  the  like,  affecting  the  validity  of  the  instrument.  Further, 
it  would  be  pointed  out  with  justice  that,  if  the  construction  contended 
for  be  the  true  one,  it  is  arrived  at  by  obliterating  all  distinction  be- 
tween the  probate  of  domestic  and  foreign  wills,  by  refusing  recogni- 
tion to  the  language  of  the  Code  classifying  these  foreign  wills,  and 
by  a  surrender  of  the  state's  original  jurisdiction  in  these  matters,  with 
the  result  that  it  places  the  state  of  California  in  an  anomalous  class 
by  itself.  For  neither  the  laws  of  Great  Britain  nor  of  any  sister  state 
of  the  United  States  ever  have  permit-ted,  and  we  venture  to  say  never 
will  permit,  any  such  doctrine,  and  it  may  be  safely  added  that  no 
civilized  country  in  the  world  has  ever  entertained  it.  Numerous  cases 
would  be  cited  showing  that,  while  in  matters-  of  probate  states  by 
comity  permit  ancillary  jurisdiction  of  foreign  wills,  they  are  jealous 
in  the  extreme  of  any  invasion  of,  or  attempt  to  invade,  their  original 
jurisdiction  in  such  matters.  Manuel  v.  Manuel,  13  Ohio  St.  459; 
Sturdivant  v.  Neill,  27  Miss.  157;  Stark  v.  Parker,  56  N.  H.  481; 
Wallace  v.  Wallace,  3  N.  J.  Eq.  616;  In  re  Law,  80  App.  Div.  73,  80 
N.  Y.  Supp.  410;  Moultrie  v.  Hunt,  23  N.  Y.  394;  Dial  v.  Gary,  14  S. 
C.  573,  37  Am.  Dec.  737;  Story  on  Conflict  of  Laws,  ,§  45'7;  23  Am. 
&  Eng.  Ency.  of  Law,  p.  114;  Schouler  on  Executors,  §§  15  and  57; 
2  Redfield  on  Wills,  p.  290;  1  Woerner's  Adm.  §  226. 

In  summing  up,  we  think  the  unhampered  jurist  would  reach  the 
conclusion  that  our  laws  not  only  recognize,  but  sedulously  preserve, 
the  distinction  between  foreign  and  domestic  wills  and  the  probate 
thereof;  that  the  law  means  what  it  says,  namely,  that  all  domestic 
wills  must  be  proved  in  the  county  of  which  the  decedent  was  a  resi- 
dent at  the  time  of  his  death,  for  thus  the  state  preserves  its  sovereign- 
ty and  its  jurisdiction  over  matters  primarily  belonging  to  it,  and  thus 
also,  it  preserves  the  rights  of  its  other  residents  and  citizens ;  further- 
more, that  all  foreign  wills  may  be  proved  and  allowed  as  provided 
in  section  1322  of  the  Code  of  Civil  Procedure,  et  seq. ;  that  in  the 
case  of  a  domestic  will  all  questions  touching  the  validity  of  the  in- 
strument are,  and  should  be,  primarily  and  exclusively  cognizable  by 
the  courts  of  the  state  of  the  domicile ;  that  in  the  case  of  a  foreign 


PROBATE  OK  RECORD  OF  FOREIGN  WILLS  197 

will,  that  is  to  say,  of  one  not  a  resident  of  this  state,  this  state  and  its 
citizens  have  less  concern  with  these  questions  of  fraud,  undue  in- 
fluence, and  the  like,  and  upon  the  offer  of  proof  of  such  a  will  it  shall 
be  admitted  upon  the  evidence  prescribed  by  section  1324,  without 
right  of  contest  upon  such  matters.  Code  Civ.  Proc.  ,§  1913.  But, 
nevertheless  and  always,  when  a  foreign  will  is  so  offered  for  probate 
in  this  state,  two  questions  are  open  as  new  and  original  questions  for 
the  determination  of  our  own  probate  court:  First,  the  sufficiency  of 
the  proofs  of  foreign  probate;  and,  second,  the  question  of  the  resi- 
dence of  the  deceased.  For  if,  upon  the  question  of  residence,  it  shall 
be  determined  that  the  deceased  was  in  truth  a  resident  of  this  state, 
it  follows  of  necessity  that  the  proper  state  court  has  exclusive,  orig- 
inal primary  jurisdiction  to  admit  the  will  to  probate,  and  will  not 
admit  it  as  a  foreign  will  for  ancillary  proceedings.  It  does  not,  of 
course,  follow  that  because  the  probate  court  under  such  circumstances 
will  not  admit  it  as  a  foreign  will  that  it  will  refuse  it  probate  alto- 
gether. It  will  grant  it  probate,  the  facts  warranting,  in  proceedings 
under  section  1294  for  original  probate.  Nor  can  practical  difficulty 
arise  because  such  a  will  has  been  probated  in  a  foreign  jurisdiction, 
for  the  Code  (section  1299,  supra)  meets  this  precise  situation  by  pro- 
viding that  petition  may  be  made  to  the  court  having  jurisdiction  to 
have  the  will  proved,  whether  it  be  lost,  or  destroyed,  or  beyond  the 
jurisdiction  of  the  state.  *  *  *  Affirmed. 
VAN  DYKE,  MCFARLAND,  and  SHAW,  JJ.,  dissent. 


198  ACTIONS  FOB   CONSTBUCTION    OF   WILLS 


ACTIONS  FOR  THE  CONSTRUCTION  OF  WILLS 
I.  When  Action  Lies  x 

POLL  v.  CASH. 
(Supreme  Court  of  Illinois,  1908.    234  111.  53,  84  N.  E.  719.) 

CARTWRIGHT,  J.  The  circuit  court  of  Champaign  county  sustained 
the  demurrer  of  defendants  in  error  to  the  second  amended  bill  of 
plaintiffs  in  error  for  a  construction  of  the  will  of  Christian  Poll,  de- 
ceased, and  the  appointment  of  a  trustee  to  sell  the  real  estate  devised 
by  said  will,  and  to  distribute  the  proceeds.  The  complainants  elected 
to  stand  by  the  bill,  and  the  court  dismissed  it  at  their  costs. 

The  facts  alleged,  which  the  circuit  court  adjudged  insufficient  to 
authorize  the  relief  prayed  for  are  as  follows :  Christian  Poll  died  on 
June  10,  1892,  leaving  a  widow,  Mary  Poll,  who  was  his  second  wife, 
and  is  now  Mary  Cash,  wife  of  William  Cash,  and  three  children  of  his 
first  wife,  George  Poll,  Christian  F.  Poll,  and  John  Poll,  the  complain- 
ants, and  two  children  of  the  second  wife,  Emma  Poll  (now  Emma 
Blanchard)  and  Frank  Poll,  his  heirs  at  law.  At  the  time  of  her  mar- 
riage with  Christian  Poll  Mary  Poll  had  a  child  called  Minnie,  who 
became  a  member  of  the  family  of  Christian  Poll,  and  was  called 
Minnie  Poll.  She  was  afterward  married  to  Charles  Bialeschki,  and 
died,  leaving  a  daughter,  Emma  Bialeschki.  Christian  Poll  left  a  last 
will  and  testament,  which  was  written  by  an  ignorant  person  named 
Magee,  and  the  following  is  a  copy  of  the  will : 

this  26  may  1892 

this  indenture  made  this  26  may  1892  the  will  of  Christian  poll  the  Said 
Christian  poll  dos  apoint  mary  poll  as  executoer  and  administrator  of 
said  estate  Situated  Champaign  County  Illinois  the  north  hafe  of  South 
west  fractional  quarter  of  Section  six  16  in  toneship  eighteen  18  north 
range  eight  8  east  of  3ne  p.  m.  and  containing  Sixty  eight  eighh  50/100 
68  50/100  acres  more  or  less  Said  christan  poll  bequeses  all  his  land 
and  personal  property  to  his  wife  as  long  as  she  may  live  to  rais  and 
surport  the  younger  children  and  when  the  youngest  child  becomes  of 
age  the  land  to  be  sold  and  eaqueal  devided  a  mong  six  children  except 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  101. 


WHEN   ACTION  LIES  199 

he  share  of  Said  land  and  personal  property  as  situated  in  tonlono  ton- 
ship  State  of  illinois  this  to  remain  in  full  fierce.  Christ  Poll, 
witness  Wm.  Schnabel. 

F.  Hunderedpfund. 
witness  my  hand  and  seal  this  26  day  may  1892. 

John  S.  magee  a  notary. 

My  heirs  is  John  poll;  georg  poll,  christ  poll  minny  poll  erne  poll 
f  rankey  poll. 

The  will  was  admitted  to  probate,  and  the  widow  qualified  as  execu- 
trix. When  the  will  was  made  Christian  Poll  owned  the  north  half  of 
the  southwest  quarter  of  section  6,  in  township  18  north,  range  8  east, 
of  the  third  principal  meridian,  in  Tolono  township,  in  Champaign 
county,  and  owned  the  same  at  his  death,  but  did  not  own  any  other 
lands  at  the  time  the  will  was  made,  or  at  any  time  afterward.  The  bill 
alleged  that  defendant  Mary  Cash  claimed  a  life  estate  in  the  land, 
while  complainants  contended  that  her  estate  would  only  continue  until 
the  youngest  child,  Frank  Poll,  should  arrive  at  the  age  of  21  years, 
when  the  land  was  to  be  sold  and  the  proceeds  equally  divided  between 
the  five  children  of  the  testator  and  Minnie  Poll,  one-sixth  to  each. 
The  bill  alleged  that  Frank  Poll  was  still  a  minor,  and  asked  for  the 
appointment  of  a  guardain  ad  litem  for  him  and  the  defendant  Emma 
Bialeschki,  the  other  infant  defendant,  and  it  prayed  the  court  to  con- 
strue the  will  as  contended  for  by  the  complainants,  and  to  appoint  a 
trustee  to  sell  the  property  and  to  divide  the  proceeds,  subjecting  the 
share  of  George  Poll  to  a  lien  held  by  Robert  A.  Parrett,  one  of  the 
defendants. 

The  court  did  not  err  in  sustaining  the  demurrer  and  dismissing  the 
bill.  The  equitable  jurisdiction  to  construe  wills  is  incident  to  the  gen- 
eral jurisdiction  over  trusts,  and  it  is  exercised  to  insure  a  correct 
administration  of  a  power  or  trust  conferred  by  will.  Whitman  v. 
Fisher,  74  111.  147;  Longwith  v.  Riggs,  123  111.  258, 14  N.  E.  840.  Even 
upon  the  theory  of  complainants  there  would  be  no  power  or  trust  to 
be  executed  until  Frank  Poll  should  be  of  age.  The  bill  did  not  state 
the  age  of  Frank  Poll,  but  stated  that  he  was  still  a  minor,  and  the  time 
for  a  sale  of  any  property  subject  to  sale  had  not  arrived.  There  was 
no  necessity  for  invoking  the  judgment  of  the  court  concerning  a  con- 
troversy which  had  not  yet  arisen ;  and,  even  if  complainants  were  right 
in  their  construction  of  the  will,  there  was  no  power  either  to  divest 
the  widow  of  her  estate  or  to  compel  her  to  take  the  value  of  it,  or  to  sell 
the  property  subject  to  her  estate.  Furthermore,  the  question  raised 
was  neither  difficult  nor  doubtful,  and  there  was  no  such  uncertainty 
as  to  the  rights  and  interests  of  the  parties  as  would  call  for  the  inter- 
position of  a  court  of  equity.  The  intention  of  the  testator  is  plain, 
although  the  method  of  expression  is  crude,  owing  to  the  ignorance  of 
the  notary.  In  directing  a  sale  of  land  and  a  division  of  the  proceeds 
the  testator  expressly  excepted  the  land  situated  in  Tolono  township, 


200  ACTIONS   FOR   CONSTRUCTION    OF   WILLS 

and  as  to  that  land  declared  that  the  will  was  to  remain  in  full  force. 
As  it  was  excepted  from  the  provisions  for  a  sale,  and  the  will  was  to 
remain  in  full  force  as  to  it,  the  testator  could  have  meant  nothing  else 
except  that  the  widow  was  to  have  the  life  estate  devised  to  her.  The 
testator  had  no  other  land,  but  he  had  a  right  to  provide  for  the  con- 
tingency that  he  might  by  some  means  become  the  owner  of  other  prop- 
erty and  to  direct  the  same  to  be  sold.  Although  the  will  was  the  prod- 
uct of  an  illiterate  and  ignorant  scribe,  the  intention  of  the  testator 
that  his  widow  should  have  a  life  estate  and  that  the  remainder  should 
go  to  persons  whom  he  named  as  his  heirs  is  not  in  doubt. 
The  decree  of  the  circuit  court  is  affirmed.  Decree  affirmed. 


II.  Parties8 


LUMPKIN  v.  LUMPKIN. 

(Court  of  Appeals  of  Maryland,  1908.    108  Md.  470,  70  Atl.  238,  25  L.  R.  A. 

[N.  S.]  1063.) 

SCHMUCKER,  J.8  *  *  *  It  appears  from  the  record  that  Robert 
G.  Lumpkin,  of  Baltimore  city,  died  on  August  10,  1905,  seised  of  a 
dwelling  house  and  164  fee-simple  ground  rents,  and  possessed  of  per- 
sonalty of  large  value.  He  left  a  will,  which  will  be  more  fully  noticed 
hereafter,  naming  his  widow,  Hannah  S.  Lumpkin,  and  W.  Burns 
Trundle  as  executors,  and  they  duly  qualified  as  such.  The  widow  and 
five  children  and  three  grandchildren  survived  the  testator.  The  chil- 
dren were  Edward  T.,  John  F.,  Emma  V.,  Robert  G.  L.,  and  William 
W.  At  the  death  of  the  father  Edward  T.  was  married  and  had  two 
infant  children ;  and  Emma  V.  was  the  wife  of  James  Clark  and  had 
one  infant  child.  Robert  G.  was  also  married,  but  had  no  children ;  and 
William  W.  married  the  appellant  on  September  27,  1905,  after  his 
father's  death. 

Robert  G.  Lumpkin  by  his  will,  which  was  made  on  January  22,  1900, 
gave  to  his  widow  his  dwelling  house  and  its  contents  absolutely,  and 
also  gave  her  four- tenths  of  his  entire  estate  for  her  life,  with  re- 
mainder to  his  children  to  be  equally  divided  between  them.  He  then 
gave,  without  any  expressions  of  qualification  or  limitation  to  each  one 
of  his  five  children  one-tenth  of  his  estate  less  whatever  the  recipient 
might  owe  him  at  his  death.  The  testator,  then,  after  giving  the  re- 
maining one-tenth  of  his  estate  in  trust  for  his  grandchildren,  added 
at  the  end  of  the  clause  creating  the  trusts  the  following  sentence:  "In 
case  of  either  of  my  children's  death  without  leaving  lawful  issue  then 

2  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  101. 
s  Part  only  of  the  opinion  is  given. 


PARTIES  201 

I  will  and  direct  that  their  portion  or  inheritance  in  my  estate  shall  be 
equally  divided  between  my  wife  and  my  surviving  children."  The 
true  meaning  of  that  sentence  is  the  question  of  construction  lying  at 
the  root  of  the  entire  litigation  of  which  the  present  appeals  are  the 
latest  development.  The  appellant  contends  that  the  death  therein 
referred  to  of  a  child  without  issue  means  such  a  death  in  the  lifetime 
of  the  testator,  while  the  appellees  insist  that  it  means  such  a  death 
whenever  it  shall  occur.  It  is  conceded  by  all  parties  that  under  article 
23,  §  325,  of  the  Code  of  Public  General  Laws  of  1904,  the  devise  over 
is  not  void  for  indefiniteness. 

On  September  22,  1905,  a  bill  was  filed  in  circuit  court  No.  2  of 
Baltimore  city  by  the  widow  and  children  of  Robert  G.  Lumpkin 
against  the  three  infant  grandchildren  for  the  twofold  purpose  of  a 
partition  of  the  ground  rents  of  which  he  died  seised  according  to  the 
terms  of  his  will,  and  also  a  construction  of  his  will  in  order  "to  deter- 
mine what  estates  the  devisees  and  legatees  under  said  will  take  in  their 
respective  shares  thereunder,"  and  for  further  relief.  *  *  * 

At  the  time  of  the  filing  of  the  original  bill  for  partition  and  the 
construction  of  the  will  of  Robert  G.  Lumpkin  neither  his  executors, 
nor  the  wife  of  his  son  Robert  G.,  who  was  then  married,  were  made 
parties  to  the  case.  On  October  4,  1905,  however,  a  petition  was  filed 
by  the  plaintiffs  then  in  the  case  calling  the  court's  attention  to  the 
absence  from  the  record  of  Robert's  wife  and  of  the  appellant  who  had, 
since  the  filing  of  the  bill,  married  the  son  William  G.,  and  asking  leave 
to  amend  the  bill  of  interlineation  making  the  two  wives  parties  plaintiff 
to  the  case.  Leave  having  been  granted,  the  plaintiffs  interlined  the 
names  of  the  two  wives  among  the  names  of  the  plaintiffs  in  the  bill, 
but  so  far  at  least  as  the  appellant  is  concerned  she  never  authorized  any 
counsel  to  appear  for  or  represent  her  in  the  case  nor  was  she  ever 
summoned  or  otherwise  brought  into  the  case  or  under  the  jurisdiction 
of  the  court,  and  it  is  conceded  that  she  never  was  a  party  to  the  case 
until  she  filed  her  petition  to  open  the  decree. 

On  November  18,  1907,  more  than  eighteen  months  after  the  passage 
of  the  final  decree  and  seven  months  after  the  filing  by  the  appellant  of 
her  petition  to  reopen  the  decree  and  her  bill  of  review,  the  executors 
asked  for  and  obtained  leave  of  court  to  be  made  parties  plaintiff  to  the 
case  nunc  pro  tune  by  amendment  by  interlineation  on  the  bill  which 
was  accordingly  made.  *  *  * 

Conceding  that  the  appellant  as  the  wife  of  one  of  the  sons  of  the 
testator  was  not  a  necessary  party  to  the  case  for  the  purposes  of  the 
partition  of  the  rents  which  did  not  impair  or  destroy  her  dower,  but 
merely  transferred  it  from  her  husband's  undivided  share  of  the  rents 
to  those  of  them  which  were  allotted  to  him  in  severalty,  she  was  a 
necessary  party  for  the  purpose  of  the  construction  of  the  will.  The 
partition  did  not  put  her  dower  in  the  rents  in  jeopardy  but  the  con- 
struction of  the  will  not  only  put  her  marital  rights  in  her  husband's 
real  and  personal  estate  in  peril,  but  the  interpretation  of  the  will 


202  ACTIONS   FOR   CONSTRUCTION   OF   WILLS 

adopted  by  the  court,  if  it  were  to  stand,  would  in  effect  deny  the  exist- 
ence of  those  rights.  Before  that  can  be  done  she  must  have  notice 
and  an  opportunity  to  be  heard.  The  plaintiffs  elected  to  make  her  a 
party  and  obtained  the  court's  authority  to  do  so,  but  the  steps  they  took 
for  that  purpose  were  entirely  ineffectual  to  bring  her  under  the  court's 
jurisdiction.  They  went  so  far  as  to  interline  her  name  upon  the  bill 
among  the  plaintiffs  but  she  was  a  nonresident  of  the  state  and  they 
neither  procured  her  to  appear  by  counsel,  nor  summoned,  her,  nor 
took  any  other  steps  to  bring  her  under  the  jurisdiction  of  the  court. 
Nor  can  we  give  our  assent  to  their  contention  that  she,  a  nonresident 
feme  covert,  was  bound  by  the  proceedings  because  she  heard  them 
discussed  by  her  husband's  family  on  a  visit  to  Baltimore  in  December, 
1905,  and  was  thereby  brought  within  the  operation  of  the  principle 
announced  by  us  in  Albert  v.  Hamilton,  76  Md.  304,  25  Atl.  341 ;  Riley 
v.  First  Nat.  Bank,  81  Md.  28,  31  Atl.  585 ;  Williams  v.  S'nebly,  92  Md. 
21,  AS  Atl.  43;  Fetterhoff  v.  Sheridan,  94  Md.  454,  51  Atl.  123,  and 
other  cases,  that  persons  directly  interested  in  a  suit  who  know  of  its 
pendency  and  have  the  right  to  control,  direct,  or  defend  it,  and  fail  to 
appear  and  assert  their  rights,  are  concluded  by  it.  The  appellant's 
marital  interest  in  her  husband's  property  came  into  existence  pendente 
lite,  but  it  arose  by  operation  of  law,  and  not  by  assignment  from  him, 
and  she  should  therefore,  in  view  of  her  direct  interest  in  the  subject- 
matter  of  the  suit,  have  been  made  a  party  to  it  in  order  to  bind  her  by 
the  construction  of  the  will.  Calvert  on  parties,  *91,  92,  97;  Story, 
Eq.  PI.  §  158,  342;  Miller's  Eq.  56,  57;  Handy  v.  Waxter,  75  Md.  521- 
523,  23  Atl.  1035. 

The  executors  of  a  will  disposing  of  personal  property  are  always 
essential  parties  to  a  bill  to  construe  provisions  of  the  will  affecting  the 
personal  estate,  as  the  title  is  in  them  until  distribution  has  been  made, 
and  the  executors  of  Mr.  Lumpkin's  will  should  have  been  made  parties 
to  the  present  case  before  the  passage  of  the  decree.  *  *  *  Re- 
versed. 


CONSTRUCTION  OF  WILLS CONTROLLING  PRINCIPLES  203 


CONSTRUCTION   OF  WILLS— CONTROLLING 
PRINCIPLES 

I.  General  Rules  of  Construction 
1.  TIME:  FROM  WHICH  WILL  SPEAKS  1 


DOWNING  v.  GRIGSBY. 

(Supreme  Court  of  Illinois,  1911.    251  111.  568,  96  N.  E.  513.) 

DUNN,  J.2  Strother  Grigsby  died  in  1897,  leaving  the  appellee,  his 
widow,  and  his  four  children  by  a  former  wife,  his  heirs.  He  left  a 
will,  by  the  second  clause  of  which  he  devised  to  his  widow  a  life  es- 
tate in  lot  7,  block  23,  in  the  town  of  Pittsfield — their  homestead.  The 
appellee  filed  a  bill  for  the  partition  of  these  premises,  subject  to  such 
life  estate,  claiming  one-half  of  the  fee  in  remainder  by  virtue  of  the 
fifth  clause  of  the  will.  The  second  and  fifth  clauses  are  as  follows : 

"Second — I  will  and  bequeath  to  my  beloved  wife,  Missouri  E. 
Grigsby,  all  my  household  property  used  about  my  residence  in  the 
town  of  Pittsfield,  including  my  horse  and  surrey,  which  I  give  to  her 
in  lieu  of  special  dower.  I  also  devise  unto  my  said  wife,  Missouri  E. 
Grigsby,  during  her  natural  life  and  at  her  death  to  revert  to  my  estate, 
my  home  place  in  Pittsfield,  being  lot  seven  (7),  in  block  twenty-three 
(23),  in  said  town  of  Pittsfield,  in  Pike  county,  Illinois." 

"Fifth — It  is  my  will,  after  the  payment  of  all  my  debts,  whether 
the  same  may  be  secured  by  mortgage  or  not,  all  the  rest  and  residue 
of  my  estate  shall  be  divided  as  follows,  to  wit :  To  my  wife,  Missouri 
E.  Grigsby,  one-half ;  to  my  son  James  H.  Grigsby  one-eighth ;  to  my 
son  Hugh  De  Loss  Grigsby  one-eighth;  to  my  daughter,  Lola  V. 
Anderson,  one-eighth ;  and  to  my  son  Elmer  E.  Grigsby  one-eighth." 

The  court  decreed  a  partition  in  accordance  with  the  prayer  of  the 
bill,  and  the  defendants  have  appealed. 

The  intention  of  the  testator,  which  must  control  in  the  construction 
of  his  will,  is  the  intention  expressed  by  its  words,  and  not  an  intention 
which,  it  may  be  inferred  from  circumstances,  he  might  have  had,  but 
has  failed  to  express.  The  second  clause  of  this  will  deals  with  the 
provision  of  a  home  for  the  testator's  widow  during  her  lifetime,  and 
in  it  the  testator  has  expressed  a  manifest  intention  that  she  should 
have  an  estate  for  her  life  in  their  homestead.  In  that  clause  he  makes 
no  other  disposition  of  the  homestead,  but  merely  declares  that  at  her 

1  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  104. 

2  A  portion  of  the  opinion  is  omitted. 


204:  CONSTRUCTION  OF  WILLS CONTROLLING   PRINCIPLES 

death  it  is  to  revert  to  his  estate.  This  is  the  legal  result  of  the  grant 
of  a  life  estate,  without  more.  The  reversion  remains  in  the  grantor, 
and  upon  the  expiration  of  the  life  estate  the  enjoyment  and  possession 
of  the  property  return  to  the  grantor  or  his  heirs  or  assigns.  The  ordi- 
nary meaning  of  the  words  "revert  to  my  estate"  is  "return  to  the  aggre- 
gate of  all  the  property  which  I  may  leave  at  my  death." 

It  is  contended  on  behalf  of  appellants  that  the  words  "at  her  death 
to  revert  to  my  estate,"  constitute  a  devise  of  a  contingent  remainder 
to  those  persons  who  may  answer  the  description  of  the  testator's  heirs 
at  the  time  of  the  death  of  the  appellee.  Wills  speak  from  the  death  of 
the  testator,  and,  unless  controlled  by  a  manifest  intention  to  the  con- 
trary, estates  devised  will  be  construed  as  vesting  at  that  time.  The 
words  "at  her  death"  refer,  not  to  the  time  of  ascertaining  the  persons 
who  may  be  entitled  to  the  estate,  but  to  the  time  when  such  persons 
shall  come  into  the  possession  and  enjoyment  of  it.  The  word  "estate" 
is  not  equivalent  to  "heirs."  When  a  man  makes  a  will,  the  business  in 
which  he  engages  is  the  distribution  of  his  estate,  usually  among  his 
heirs,  and  perhaps  other  persons.  The  estate  is  the  subject-matter  with 
which  he  deals.  The  heirs  are  possible  distributees.  When  a  portion 
of  the  estate  has  been  placed  temporarily  at  the  use  or  disposal  of  a 
devisee,  it  is  a  natural  form  of  expression  to  declare  that  upon  the  ces- 
sation of  the  use  such  portion  shall  return  to  the  estate,  or  fall  into  the 
estate,  or  become  a  part  of  the  estate,  or  of  the  residue  of  the  estate. 
All  these  expressions  have  substantially  the  same  meaning.  This 
natural  meaning  of  the  words  may  be  controlled  by  a  different  intention 
manifested  by  the  language  of  the  will,  but  unless  so  controlled  it  will 
be  given  effect.  Since  the  remainder  after  the  life  estate  to  the  widow 
is  not  otherwise  disposed  of,  it  passes  by  the  devise,  in  the  fifth  clause, 
of  "all  the  rest  and  residue  of  my  estate." 

It  is  insisted  that  it  is  absurd  to  suppose  that  the  testator  intended  to 
give  an  estate  for  life  to  his  widow  by  the  second  clause  of  his  will 
and  half  the  fee  in  remainder  by  the  fifth  clause,  and  that  there  never 
was  a  case,  where  an  estate  for  life  was  expressly  devised  to  the  first 
taker,  that  the  devisor  intended  that  he  should  have  any  more.  The 
latter  proposition  is  true  enough,  where  the  court  undertakes  the  con- 
struction only  of  the  clause  creating  the  life  estate,  and  this  expression 
has  been  used  by  this  court  in  reference  to  devises  involving  the  rule 
in  Shelley's  Case.  But  there  is  nothing  inherently  absurd  in  a  testa- 
tor's giving  to  one  of  several  to  whom  a  fee  is  devised  the  enjoyment 
of  the  whole  property  during  his  lifetime,  or  to  a  life  tenant  of  the 
whole  a  share  of  the  fee  in  remainder.  In  Smith  v.  Winsor,  239  111. 
567,  88  N.  E.  482,  we  stated  that  the  weight  of  authority  established 
the  rule  that  in  case  of  a  devise  for  life  to  one  who  was  an  heir  of  the 
testator,  with  remainder  in  fee  to  the  testator's  heirs,  the  devise  of  the 
estate  for  life  in  all  the  property  will  not  exclude  the  life  tenant  from 
sharing  in  the  remainder,  though  an  exception  to  this  rule  was  recog- 
nized in  Johnson  v.  Askey,  190  111.  58,  60  N.  E.  76,  where  the  life  tenant 


GENERAL   RULES   OF   CONSTRUCTION  205 

is  the  sole  heir  and  the  remainder  is  devised  to  "heirs"  of  the  testator ; 
and  the  latter  case,  while  stating  the  exception,  recognized  the  rule,  and 
referred  to  and  distinguished  the  case  of  Kellett  v.  Shepard,  139  111. 
433,  28  N.  E.  751,  34  N.  E.  254,  where  it  was  affirmed.  *  *  *  De- 
cree affirmed. 

HAND  and  CARTWRIGHT,  JJ.,  dissent.* 


2.  PRESUMPTION  AGAINST  PARTIAL  INTESTACY* 


BATES  v.  KINGSLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  62,  102  N.  R  306.) 

RuGG,  C.  J.  This  is  a  petition  for  the  interpretation  of  the  will  of 
Emma  L/.  Brewster,  who  died  a  childless  widow,  leaving  personal 
property  of  about  $1,600  and  real  estate  of  about  $3,000  in  value.  Her 
will  consists  of  nine  clauses.  By  the  first  she  provided  for  the  pay- 
ment of  her  debts.  The  next  four  gave  pecuniary  bequests  amounting 
in  all  to  $800,  to  three  of  which  there  was  added  a  piece  of  furniture. 
The  sixth  clause  disposed  of  her  wearing  apparel.  The  seventh,  to 
which  this  petition  relates,  is  in  these  words : 

"I  bequeath  and  devise  my  Silver  and  Jewelry  as  follows :  To  Mrs. 
Harry  Kinsley  &  Viva  Bates — Marion  Bates  and  Elsa  W.  Carlander.) 
They  to  divide  it  up  between  Themselves)  And  also  the  remainder  if 
any." 

The  eighth  clause  relates  to  her  funeral  and  the  disposition  of  her 
remains,  and  the  ninth  to  the  appointment  of  her  executor. 

The  question  to  be  decided  is  whether  by  the  seventh  clause  the  tes- 
tatrix disposed  of  her  real  estate  and  of  the  residue  of  her  personal 
estate,  or  whether  that  is  in  whole  or  in  part  intestate  estate.  There 
is  a  general  presumption  founded  on  common  experience  that  one  who 
makes  a  will  intends  to  dispose  of  all  his  property  and  to  leave  no 
intestate  estate.  This  general  presumption  is  of  some  assistance  in 
doubtful  cases.  Jones  v.  Gane,  205  Mass.  37,  43,  91  N.  E.  129.  On 
the  other  hand  it  has  been  held  that  a  will  which  does  not  manifest 
an  intent  to  dispose  of  the  entire  estate  of  the  testator,  and  in  which 
the  bequests  all  relate  to  articles  of  furniture,  books  or  money  specified 
with  great  minuteness,  concluding  with  the  words  "all  the  rest  and 
residue  of  my  furniture  and  estate  whatever  or  wherever  it  may  be" 
includes  "only  the  property  and  estate  ejusdem  generis,"  and  does  not 
dispose  of  real  estate.  Bullard  v.  Goffe,  20  Pick.  252.  All  the  circum- 
stances under  which  a  testator  executed  a  will  may  be  considered  in 

«  The  dissenting  opinion  is  omitted. 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  104. 


206  CONSTRUCTION  OF  WILLS CONTROLLING   PRINCIPLES 

order  to  determine  the  sense  in  which  testamentary  language  was 
used.  Polsey  v.  Newton,  199  Mass.  450,  85  N.  E.  574,  15  Ann.  Cas. 
139. 

The  present  testatrix  for  many  years  had  had  the  care  of  children. 
Her  father,  who  was  her  only  prospective  heir  at  law  at  the  time  her 
will  was  executed,  was  far  advanced  in  years  and  was  not  in  the  pos- 
session of  all  his  faculties.  He  lived  with  one  of  two  sons  to  whom 
his  property  had  been  conveyed  upon  the  agreement  that  he  should  be 
given  comfortable  support  during  his  life.  This  agreement  seems  to 
have  been  carried  out.  Of  the  four  persons  mentioned  in  clause  sev- 
enth, two  were  her  nieces.  She  had  brought  up  Elsa  W.  Carlander 
from  a  small  child  and  generally  called  her  daughter,  and  who  in  turn 
spoke  of  testatrix  as  mother,  although  there  was  no  kinship  between 
them.  Mrs.  Kingsley  was  the  wife  of  a  nephew  of  the  husband  of 
the  testatrix.  This  nephew  had  been  brought  up  by  the  testatrix  and 
her  husband,  with  whom  he  made  his  home  until  he  was  married.  The 
four  were  visitors  at  her  house  for  considerable  periods  of  each  year. 

It  has  been  found  by  the  single  justice  that  the  relations  between 
the  testatrix  and  the  four  persons  named  in  clause  seventh  "were  af- 
fectionate and  that  she  was  fond  of  them,  but  that,  for  some  reason, 
the  feelings  were  not  as  friendly  towards  her  brother  Shepard,  the 
petitioner,  though  the  intercourse  between  them  was  in  general  such 
as  might  naturally  be  expected  of  brother  and  sister."  A  fac  simile 
copy  of  the  will,  which  is  annexed  to  the  record,  shows  that  it  was 
written  by  the  testatrix  herself  upon  a  printed  form.  The  total  value 
of  the  silver  and  jewelry  was  about  $5. 

This  will  is  an  informal  instrument.  The  seventh  clause  in  position 
is  where  a  residuary  clause  would  be  found  commonly.  It  follows 
immediately  after  those  giving  pecuniary  legacies  and  specific  bequests. 
The  donative  phrase  with  which  the  clause  opens,  namely,  "I  bequeath 
and  devise,"  is  technically  apt  to  dispose  of  real  estate.  The  persons 
therein  named  were  her  dearest  friends  with  whom  for  many  years 
her  association  had  been  very  intimate.  Although  Mrs.  Kingsley  and 
Miss  Carlander  were  given  small  pecuniary  legacies  by  earlier  clauses, 
her  two  nieces  were  not  so  remembered.  They  would  receive  a  small 
amount  unless  this  is  construed  as  a  true  residuary  clause.  The  words, 
"and  also  the  remainder,  if  any"  can  have  no  meaning  unless  construed 
to  include  something  more  than  the  jewelry.  There  was  no  "remain- 
der" of  the  jewelry  because  it  all  was  disposed  of.  These  words  are 
disconnected  from  the  other  bequests  of  the  clause  and  hence  naturally 
would  be  given  a  broad  interpretation.  "Remainder"  is  a  word  suffi- 
ciently comprehensive  in  meaning  to  include  whatever  may  be  left  of 
the  estate  after  paying  the  earlier  bequests,  including  land  as  well  as 
money.  In  its  strictly  legal  significance,  it  relates  to  real  estate. 
Woodbridge  v.  Jones,  183  Mass.  549,  67  N.  E.  878.  We  incline  to 
the  view  that  these  considerations  are  enough  to  distinguish  the  case 
at  bar  from  Bullard  v.  Goffe,  20  Pick.  252,  and  to  indicate  a  purpose 


GENERAL   RULES    OF    CONSTRUCTION  207 

to  include  in  clause  seventh  not  only  the  rest  of  the  personal  property 
but  also  the  real  estate  of  the  testatrix. 
Decree  accordingly. 


WORDS  •  V^ 

«rr 

LEATHERS  v.  GRAY. 

(Supreme  Court  of  North  Carolina,  1888.     101  N.  C.  162,  7  S.  E.  657,  9  Am. 

St.  Rep.  30.) 

MERRIMON,  J.  This  is  an  application  to  rehear  the  case  of  Leathers 
v.  Gray,  reported  in  96  N.  C.  548,  2  S.  E.  455.  The  will  of  Joseph 
Armstrong,  deceased,  a  clause  of  which  was  interpreted  in  that  case, 
was  executed  on  the  23d  day  of  May,  1839,  and,  the  testator  having 
died  in  the  mean  time,  it  was  proven  in  1840.  The  following  is  a  copy 
of  the  clause  in  question  of  this  will  :  "I  also  give  and  bequeath  to  my 
son,  James  W.  Armstrong,  the  following  property,  to  be  received  as 
soon  as  convenient  after  the  death  or  marriage  of  his  mother,  Peggy 
Armstrong,  viz.  :  One-half  of  three  tracts  of  land,  all  lying  on  the  wa- 
ters of  Flat  river.  The  first  is  the  tract  my  father  lived  and  died  on, 
containing  220  acres  ;  the  second  is  the  tract  that  I  bought  from  Henry 
Berry,  containing  17  acres  ;  and  the  third  is  a  tract  that  I  bought  from 
my  brother,  William  Armstrong,  containing  216  acres;"  and  also:  "I 
give  and  bequeath  to  my  daughter,  Parthenia  Leathers,  during  her 
natural  life,  and  after  her  death  to  the  begotten  heirs  or  heiresses  of  her 
body,  forever,  one-half  of  the  three  tracts  of  land  all  lying  on  the  wa- 
ters of  Flat  river,"  —  these  tracts  being  the  same  above  designated. 
This  court,  in  interpreting  the  last-recited  clause,  decided  that  Par- 
thenia Leathers  took  but  a  life-estate  in  the  lands  devised  to  her,  and 
that  her  children  took  and  were  entitled  to  the  remainder  in  fee  there- 
in. The  petitioner  in  this  application,  who  is  the  defendant  in  the  ac- 
tion, assigns  error,  and  contends  that  the  words  of  the  clause,  "and 
after  her  death  to  the  begotten  heirs  or  heiresses  of  her  body  forever," 
are  words  of  limitation,  and  not  words  of  purchase,  and  therefore  Par- 
thenia Leathers  took  the  absolute  fee-simple  estate  in  one  half  of  the 
lands  so  devised,  and  the  same  passed  by  her  deed  to  the  petitioner. 

It  is  conceded  that  at  the  time  the  will  before  us  became  operative  it 
was  a  settled  rule  of  law  prevailing  in  this  state  that  whenever  the  an- 
cestor, by  any  gift  or  conveyance,  took  an  estate  of  freehold,  (an  es- 
tate for  life,)  and  in  the  same  gift  or  conveyance  an  estate  is  limited, 
either  mediately  or  immediately,  to  "his  heirs,"  or  to  the  "heirs  of  his 
body"  as  a  class,  to  take  in  succession  as  heirs  to  him,  such  words  are 
words  of  limitation  of  the  estate,"  and  convey  the  inheritance  (the  whole 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  104. 


208  CONSTRUCTION  OF  WILLS CONTROLLING  PRINCIPLES 

property)  to  the  ancestor,  and  they  are  not  words  of  purchase ;  that  is, 
in  such  case  the  heir  would  take  by  descent,  and  not  by  purchase ;  the 
ancestor  would  take  the  absolute  property,  the  whole  estate,  with  the 
right  and  power  to  dispose  of  it  in  any  lawful  way.  Shelley's  Case, 
1  Coke,  104;  2  Bl.  Comm.  243;  2  Minor,  Inst.  241;  2  Washb.  Real 
Prop.  653 ;  Davidson  v.  Davidson,  8  N.  C.  163 ;  Sanders  v.  Hyatt,  8  N. 
C.  247;  Ham  v.  Ham,  21  N.  C.  598;  Allen  v.  Pass,  20  N.  C.  207;  Floyd 
v.  Thompson,  20  N.  C.  616;  Hollowell  v.  Kornegay,  29  N.  C.  261; 
Weatherly  v.  Armfield,  30  N.  C.  25 ;  Folk  v.  Whitley,  30  N.  C.  133 ; 
King  v.  Utley,  85  N.  C.  59;  Mills  v.  Thorne,  95  N.  C.  362. 

But  it  is  seriously  contended  that  this  rule,  commonly  called  "the 
rule  in  Shelley's  Case,"  has  no  proper  application  to  the  clause  of  the 
will  under  consideration,  because  it  sufficiently  appears  that  the  words 
thereof,  "begotten  heirs  or  heiresses  of  her  body,"  were  not  used  in  a 
strict  technical  sense,  but  to  imply  simply  the  children,  male  or  female, 
or  both,  of  Parthenia  Leathers,  in  which  case  her  children  would  take 
as  purchasers.  We  accepted  this  view  as  the  correct  one,  giving  effect 
to  the  intention  of  the  testator,  and  made  the  decision,  the  correctness 
of  which  is  now  called  in  question.  But  after  hearing  the  case  re- 
argued,  and  having  given  the  question  raised  much  further  considera- 
tion, we  are  of  opinion  that,  although  the  intention  of  the  testator  may 
have  been — no  doubt  was — such  as  we  declared  it  to  be,  he  failed  to  ex- 
press his  purpose  consistently  with  a  settled  rule  of  law,  which  it  is 
our  duty  to  uphold  and  enforce. 

When  a  testator  employs  words  and  phrases  to  express  his  intention 
in  the  disposition  of  his  property  by  will,  that  have  a  well-known  legal 
or  technical  meaning,  he  must  be  deemed  to  have  used  them  in  such 
sense  in  defining  and  limiting  the  estate  disposed  of,  unless  he  shall 
in  some  appropriate  way,  to  some  extent  to  be  seen  in  the  will,  have 
qualified  or  used  them  in  a  different  sense.  And  so,  also,  if  the  use  of 
such  words  brings  his  intention  so  expressed  within  a  settled  rule  of 
law,  the  latter  must  prevail,  although  the  effect  may  be  to  disappoint 
the  real  intention  of  the  testator ;  otherwise  technical  words  would  have 
no  certain  meaning  or  effect,  and  the  rule  of  law  would  be  subverted, 
in  order  to  effectuate  the  real  intention  of  the  testator,  unexpressed  or 
imperfectly  expressed.  It  is  said,  however,  that  the  real  intention  of  the 
testator  must  have  effect ;  and  so  it  must ;  but  the  real  intention  recog- 
nized and  enforced  by  the  law  is  that  expressed  in  the  will,  and  this  is 
to  be  ascertained  by  the  legal  interpretation  of  the  language  employed  to 
express  it.  Moreover,  a  testator  cannot  ignore,  displace,  and  set  at 
naught  a  rule  of  law  applicable  to  and  affecting  the  disposition  of  his 
property  by  his  will,  in  whole  or  in  part.  The  rule  of  law  must  prevail. 
He  must  make  his  dispositions  of  his  property  as  allowed  by  and  con- 
sistently with  it.  It  determines  the  meaning  and  effect  of  his  will  and 
its  several  parts,  by  the  language  employed  in  it,  and  not  by  what  is  in- 
tended, but  not  expressed,  or  not  sufficiently  expressed.  He  must  ex- 
press his  intention  in  words  appropriate  and  sufficient  to  express  his 


GENERAL   RULES   OF   CONSTRUCTION  209 

real  meaning;  and  if  he  employs  technical  legal  words,  the  technical 
meaning  must  prevail,  unless  the  same  shall  be  qualified  or  modified  by 
superadded  words  in  the  will. 

The  material  part  of  the  clause  in  question  of  the  will  before  us  is: 
"I  give  and  bequeath  to  my  daughter,  Parthenia  Leathers,  during  her 
natural  life,  and  after  her  death  to  the  begotten  heirs  or  heiresses  of 
her  body,  forever,  one-half  of  the  three  tracts  of  lands,"  etc.  Omitting 
for  the  present  from  this  clause  the  word  "heiresses,"  the  words 
thereof,  "heirs  *  *  *  of  her  body,"  have  a  technical  legal  mean- 
ing, and  it  is  clear — nothing  else  appearing — created  an  estate  tail  in 
the  devisee  named,  which  was  converted  by  the  statute  (Acts  1784,  c. 
204,  §  5 ;  Code,  §  1325)  into  an  estate  in  fee-simple.  That  statute  pro- 
vides that  "every  person  seized  of  an  estate  tail  shall  be  deemed  to  be 
seized  of  the  same  in  fee-simple,"  etc.,  and  applies  to  the  will  under 
consideration.  Hollowell  v.  Kornegay,  supra;  Weatherly  v.  Armfield, 
supra;  Folk  v.  Whitley,  supra.  If  there  were  words,  in  the  context 
clearly  showing  that  the  testator  did  not  use  the  words  "heirs  *  *  * 
of  her  body"  in  their  technical  sense,  but  to  imply  the  children  of  the 
devisee,  then,  in  that  case,  these  words  would  be  treated  as  words  of 
purchase,  and  the  devisee  would  have  taken  but  a  life-estate,  and  her 
children  would  have  taken  the  remainder. 

But  upon  further  reflection  and  scrutiny  we  think  there  are  no 
words  of  the  context  that  can  fairly,  in  view  of  numerous  decisions  of 
this  and  other  courts,  be  construed  as  having  such  qualifying  effect. 
Superadded  words,  to  have  such  effect,  must  have  appropriate  perti- 
nency in  meaning  and  bearing;  the  purpose  to  qualify  and  change  the 
technical  meaning  of  language  used  must  appear  with  reasonable  cer- 
tainty. It  seems  to  us  that  the  words  "heiresses,"  used  in  the  clause 
referred  to,  cannot  have  such  or  any  qualifying  effect.  In  their  direct 
connection,  the  next  preceding  word,  "heirs,"  imply  and  embrace  "heir- 
esses," and  all  they  mean  or  can  mean  in  their  connection;  they  are 
mere  expletives,  and  serve  no  useful  purpose.  The  phrase,  "her  heirs 
or  heiresses,"  means  no  more  than  that  the  testator  devised  the  land 
to  his  daughter  and  the  heirs  of  her  body,  male  and  female ;  and  the 
course  of  descent  is  not  changed  in  any  degree  from  what  it  would  be 
if  the  word  "heiresses"  did  not  appear,  nor  does  that  word  suggest 
or  imply  children  of  the  testator  any  more  than  the  word  "heirs."  Don- 
nell  v.  Mateer,  40  N.  C.  7;  Coon  v.  Rice,  29  N.  C.  217;  Folk  v.  Whit- 
ley,  supra;  Worrell  v.  Vinson,  50  N.  C.  94;  Gillis  v.  Harris,  59  N.  C. 
267;  2  Minor,  Inst.  351;  2  Washb.  Real  Prop.  274;  note  to  Shelley's 
Case,  1  Coke,  262. 

In  our  efforts  heretofore  to  effectuate  what  seemed  to  us  to  be  the 
real  intention  of  the  testator,  we  followed,  to  some  extent,  the  case  of 
Jarvis  v.  Wyatt,  11  N.  C.  254.  In  our  further  researches,  we  find  that 
case  to  be  questionable  authority.  Indeed,  it  has  in  effect,  not  in  terms, 
been  overruled  by  numerous  decisions.  In  Chambers  v.  Payne,  59  N. 
DUNM.CAS.WILLS — 14 


210  CONSTRUCTION  OF  WILLS CONTROLLING   PRINCIPLES 

C.  276,  this  court,  commenting  on  it  say:  "Of  that  case  it  is  only  nec- 
essary for  us  to  remark  that  the  point  decided  may  be  supported  by 
the  peculiar  language  of  the  will,  or,  if  it  cannot  be  supported  on  that 
ground,  it  must  be  conceded  as  having  been  overruled  by  numerous 
cases  since  adjudicated  upon  the  point,  to  several  of  which  we  have 
already  referred."  It  follows  that  under  the  devise  in  question  Par- 
thenia  Leathers  took  the  fee-simple  estate  in  the  lands  described  in  the 
pleadings,  and  that  the  plaintiffs  in  the  action  were  not  entitled  to  re- 
cover. The  prayer  of  the  petitioner  must  therefore  be  granted.  The 
case  must  be  reheard,  and  the  judgment  of  this  court  entered  therein  at 
the  February  term  of  1887  must  be  set  aside,  and  judgment  must  be 
entered  affirming  the  judgment  of  the  superior  court.  It  is  so  ordered. 
DAVIS,  J.,6  dissents. 


4.  Two  IRRECONCILABLE  PARTS  T! 


ARMSTRONG  v.  CRAPO. 
(Supreme  Court  of  Iowa,  1887.    72  Iowa,  604,  34  N.  W.  437.) 

,  J.  By  his  last  will  John  H.  Armstrong  provided  that  his 
just  debts  and  funeral  expenses  should  be  first  paid.  In  the  first,  sec- 
ond, third,  and  fourth  items,  provision  was  made  for  his  wife,  and, 
among  others,  it  is  provided  that  $1,000  per  annum  is  to  be  paid  her  for 
and  during  "her  natural  life."  To  Sarah  Carman  $1,000  was  devised, 
to  be  paid  her  semi-annually  "during  her  natural  life."  The  sixth 
item  in  the  will  is  as  follows:  "I  give  and  bequeath  to  John  Gregg 
Armstrong  the  sum  of  three  hundred  dollars  per  annum,  to  be  paid 
him  semi-annually  by  my  executors  during  his  natural  life."  There 
are  five  other  annuities  provided  for  in  the  will  in  precisely  the  same 
language.  Then  follows  a  devise  to  Robert  Emmett  Armstrong  of 
$500,  to  be  paid  by  the  executors  within  a  reasonable  time  after  the 
death  of  the  testator.  Then  follow  the  following  provisions: 

"Item  12.  If  any  person  to  whom  an  annuity  has  been  given  in  this 
instrument  shall  die  before  the  final  distribution  of  my  estate,  leaving 
issue,  I  direct  that  the  before-mentioned  annuity  shall  be  paid  by  my 
executors  to  their  surviving  children,  pro  rata. 

"Item  13.  On  the  final  distribution  of  my  estate,  after  setting  off 
one-third  to  my  beloved  wife,  Esther  Armstrong,  which  is  her  just  and 
proper  share,  I  direct  my  executors  to  divide  the  balance  in  equal  parts 
among  my  daughter,  Sarah  Garman,  and  my  grandchildren,  Laura  L. 
Garman,  M.  Alice  Garman,  John  Garman,  and  Grace  Garman,  or  among 

«  The  dissenting  opinion  is  omitted. 

i  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  104. 


GENERAL   RULES   OF   CONSTRUCTION  211 

such  of  them  as  may  survive.  If  any  of  the  above-mentioned  grand- 
children shall  die  leaving  issue,  their  children  shall  inherit  the  parent's 
share. 

"Item  14.  I  give  and  bequeath  to  my  beloved  wife,  Esther  Arm- 
strong, and  A.  W.  Parsons,  and  P.  M.  Crapo,  in  trust  for  the  uses  here- 
in expressed,  all  the  rest  and  residue  of  my  estate,  both  real  and  per- 
sonal, to- wit:  In  case  my  personal  property  shall  not  be  sufficient  to 
pay  off  the  various  bequests  herein  made,  or  any  obligations  outstand- 
ing against  me,  then  the  said  trustees,  or  the  survivors  of  them  in  case 
any  be  dead,  shall  sell  enough  of  my  real  estate  for  that  purpose.  It  is 
my  desire  that  they  hold  the  remaining  portions  thereof  after  all  pay- 
ments are  made;  that  they  shall  collect  the  rents  and  profits  thereof, 
and,  after  the  payment  of  taxes,  that  all  surplus  money  be  invested  at 
such  rates  of  interest  as  they  may  be  able  to  obtain ;  and  that  they  shall 
hold  said  property,  and  so  collect  said  rents  and  interest,  for  the  period 
of  ten  years  after  my  decease.  At  the  expiration  of  said  ten  years,  I 
desire  that  my  trustees  shall  pay  over  all  sums  in  their  hands,  and  con- 
vey said  real  estate  to  my  heirs,  as  designated  in  this  will,  unless  I 
should  hereafter  direct  otherwise.  In  the  event  of  destruction  of 
property,  my  trustees  shall  have  the  power  to  rebuild,  or  sell  the 
ground,  and  invest  the  proceeds,  if  in  their  estimation  it  shall  be  for  the 
best  interest  of  my  estate." 

Esther  Armstrong,  A.  W.  Parsons,  and  P.  M.  Crapo,  were  named  as 
executors.  The  assets  of  the  estate  amounted  to  about  $100,000;  three- 
fifths  of  which  consisted  of  real  estate.  The  court  found  and  deter- 
mined that  the  will  provided  there  must  be  final  distribution  of  the 
estate  at  the  expiration  of  10  years  after  the  death  of  the  testator,  in 
1876,  and  therefore  the  annuity  to  the  plaintiff  ceased  at  that  time ;  and 
this  is  the  sole  question  we  are  required  to  determine. 

It  is  the  well-settled  rule  in  the  construction  of  wills  that  the  inten- 
tion of  the  testator  as  expressed  in  the  will  must  prevail.  For  the  pur- 
pose of  ascertaining  such  intention,  all  the  provisions  of  the  will  may 
and  should  be  considered.  If  the  sixth  item  of  the  will  stood  alone, 
there  is  no  doubt  the  plaintiff  would  be  entitled  to  the  annuity  for  and 
during  his  natural  life.  It  is  equally  as  clear  that  the  will  provides  that 
final  distribution  shall  be  made  in  10  years  after  the  testator's  decease, 
and  the  real  estate  conveyed  to  the  beneficiaries  designated  in  the  will, 
unless  the  testator  should  "direct  otherwise."  No  such  direction  was 
afterwards  given,  and  the  annuities  were  not,  by  any  specific  provision 
of  the  will,  made  a  charge  on  the  real  estate  after  the  same  should  be 
conveyed  to  the  designated  heirs.  It  is  insisted  by  counsel  for  the  plain- 
tiff that  the  fourteenth  item  of  the  will  clearly  provides  that  the  estate 
should  be  divided  into  two  parts ;  one  to  be  used  in  paying  the  indebted- 
ness and  annuities,  and  the  other  to  be  held  by  the  trustees,  and  then 
distributed  to  the  beneficiaries  named  in  item  13.  In  this  proposition 
we  cannot  concur,  for  the  reason  that  at  the  time  named  the  whole 
estate  was  to  be  distributed.  At  that  time  the  trustees  were  to  divest 


212  CONSTRUCTION  OF  WILLS CONTROLLING  PRINCIPLES 

themselves  of  the  title  to  all  the  property,  and  invest  the  beneficiaries 
with  such  title.  There  is  nothing  in  the  will  which  indicates  it  was  the 
intention  of  the  testator  that  there  should  be  a  partial  division  only,  or 
that  the  annuities  should  be  charged  on  the  property  in  the  hands  of 
the  beneficiaries. 

It  is  further  insisted  that  item  13  does  not  bequeath  all  of  the  estate 
to  the  trustees,  because  there  is  reserved  a  sufficient  amount  to  pay  off 
the  various  bequests  made  in  the  will.  Conceding  this,  yet  it  is  clear 
that  the  trustees  were  to  distribute  and  convey  the  property  to  the  bene- 
ficiaries at  the  expiration  of  10  years  after  the  testator's  decease;  so 
that  under  any  view  that  may  be  taken  of  the  will,  in  our  opinion,  there 
is,  without  a  doubt,  a  repugnancy  between  the  sixth  and  fourteenth 
items  thereof.  The  question,  then,  is,  what  construction  shall  be  adopt- 
ed? The  will,  because  of  such  repugnancy,  should  not  be  regarded  as 
void;  but  in  such  case,  as  last  resort,  the  well-recognized  rule  applies 
that  where  "two  clauses  or  gifts  are  irreconcilable,  so  that  they  cannot 
possibly  stand  together,  the  clause  or  gift  which  is  posterior  must  pre- 
vail, and  be  regarded  as  expressing  the  latest  intention  of  the  testator." 
Jarm.  Wills,  472;  1  Redf.  Wills,  451.  The  reason  upon  which  the  rule 
is  based  is  said  by  Redfield  to  be  that  the  testator  must  be  considered, 
when  the  last  clause  in  the  will  was  written,  upon  reviewing  what  pre- 
ceded it,  to  have  reached  the  conclusion  that  his  intention  had  not  been 
clearly  expressed,  and  therefore  the  last  clause  was  written  as  the  final 
expression  of  what  he  most  desired.  Regarding  it  to  be  well  settled 
that  such  is  the  rule,  although  there  may  be  some  difference  as  to  the 
reasons  upon  which  it  is  based,  we  think  it  is  applicable  to  this  case, 
and  therefore  the  judgment  of  the  circuit  court  must  be  affirmed. 


\ 
5.  GIFTS  BY  IMPLICATION  8 

MASTERSON  v.  TOWNSHEND. 

(Court  of  Appeals  of  New  York,  1890.     123  N.  Y.  458,  25  N.  Ei  928,  10  L. 

R.  A.  816.) 

This  was  an  action  of  ejectment,  and  the  complaint,  after  alleging 
the  seizure  of  certain  real  estate  by  William  H.  Masterson  and  Peter 
Masterson,  as  tenants  in  common,  sets  forth  William's  death,  and 
the  devise  in  his  will  of  the  property  to  his  executor,  upon  a  certain 
trust  during  his  wife's  life  or  widowhood.  It  alleges  that  no  other 
disposition  of  the  premises  was  made,  and  that  the  widow  has  remar- 
ried. It  is  made  to  appear  that  testator  left  no  children,  and  that 
plaintiff  is  one  of  his  heirs  at  law,  and,  as  such,  he  claims  to  be  seized 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  104. 


GENERAL   EULES   OF   CONSTRUCTION  213 

of  a  certain  undivided  interest  in  the  property,  and  to  be  entitled  to 
an  immediate  possession  thereof.  The  defendants  demurred  to  the 
complaint  as  not  stating  facts  sufficient  to  constitute  a  cause  of  ac- 
tion, but  plaintiff  had  judgment  overruling  the  demurrer,  upon  which 
a  final  judgment  was  entered,  and  the  general  term  of  the  superior 
court  of  the  city  of  New  York  have  affirmed  that  judgment.  The 
defendants  thereupon  appealed  to  this  court. 

GRAY,  J.  (after  stating  the  facts  as  above).  In  order  that  plaintiff's 
right  to  the  possession  of  the  premises  in  question,  and  to  the  relief 
he  demands,  shall  appear  well-founded  in  law,  his  complaint  must  dis- 
close, on  its  face,  such  a  state  of  facts  as  that  their  admission  by  the 
defendants'  demurrer  would  leave  but  the  legal  conclusion  to  be  drawn 
in  his  favor.  For  some  undisclosed  reason,  the  case  below  was  treated 
and  disposed  of  as  though  by  the  demurrer  the  allegations  of  the  com- 
plaint as  to  the  legal  conclusion  of  a  title  and  interest  in  the  plaintiff 
were  substantially  admitted,  and  the  testamentary  devise,  which  lies 
at  the  foundation  of  plaintiff's  claim  of  title,  apparently  went  with- 
out interpretation  or  consideration.  To  the  defendants'  contention  here 
that  the  heirs  at  law  of  testator  have  taken  no  title,  under  the  devise 
in  question,  the  plaintiff  replies  that  they  are  precluded  from  occupy- 
ing that  position,  inasmuch  as  "all  the  allegations  of  the  complaint  are 
admitted  by  the  demurrer."  Of  course  there  is  nothing  in  such  a 
reply;  for,  by  the  demurrer,  no  admission  is  made  save  as  to  such 
relevant  facts  as  were  well  pleaded.  There  could  be  no  admission  by 
that  pleading  of  any  legal  conclusions,  or  of  any  interpretation  placed 
by  the  plaintiff  upon  the  devise.  The  question,  therefore,  presents 
itself  as  to  what  was  the  effect  of  the  devise  upon  the  title  to  the  real 
estate  of  which  the  testator  died  seised. 

The  devise  is  stated  at  length  in  the  complaint  in  the  following 
words :  "Third.  I  hereby  devise  and  convey  all  my  undivided  one- 
half  interest  in  the  lot  of  land  and  appurtenances  situate  on  the  cor- 
ner of  Fifty-Fourth  street  and  Seventh  avenue  in  the  city  of  New 
York,  now  owned  by  me  and  my  brother  Peter  Masterson,  jointly,  in 
trust  to  my  said  executor  to  collect  the  rents,  issues,  and  profits  of 
the  same  and  pay  over  six  hundred  dollars  thereof  to  my  wife  so 
long  as  she  remains  unmarried,  and  the  balance  of  said  rents  and 
profits  my  executors  shall  pay  to  my  said  brother,  Peter  Masterson, 
but  if,  in  the  discretion  of  my  said  brother  and  my  said  executor,  it 
should  be  deemed  advisable  to  sell  said  real  estate,  then  my  said  ex- 
ecutor is  hereby  authorized  to  unite  in  a  sale  of  said  premises,  and  is 
hereby  empowered  to  execute  all  needful  conveyances  for  that  pur- 
pose, and  from  the  proceeds  of  such  sale  pay  to  my  wife  the  sum  of 
six  hundred  dollars  annually  as  long  as  she  remains  unmarried,  and, 
upon  her  marriage,  or  death  before  marriage,  then  all  of  said  proceeds 
are  to  be  paid  to  my  brother  Peter  Masterson."  As  the  widow  has  re- 
married, the  argument  of  the  plaintiff  is  that  the  trust  created  by  the 
will  thereupon  ceased,  and  that  there  was  no  testamentary  disposition 


214  CONSTRUCTION  OF  WILLS CONTROLLING   PRINCIPLES 

made  of  this  estate  after  the  happening  of  that  event.  He  claims, 
therefore,  that  it  has  reverted  to  the  heirs  of  the  testator,  of  whom  he 
is  one.  In  that  view  we  are  unable  to  agree  with  him.  This  is  a  plain 
case  of  a  devise  by  implication,  whereby,  upon  the  death  of  testator, 
his  brother  Peter  became  vested  with  the  title  to  the  real  estate,  sub- 
ject only  to  the  trust  provision  made  for  testator's  widow.  However 
incomplete  the  language  to  express  the  purpose  of  the  testator,  an  in- 
tention and  an  understanding  on  his  part  are  evident  that  his  brother 
Peter  should  take  as  devisee  the  property,  which  was  the  subject  of 
disposition  in  that  clause.  What  the  testator  has  imperfectly  done, 
by  way  of  expression,  is  effectuated  by  the  application  of  well-known 
legal  rules.  In  the  construction  of  a  testamentary  disposition,  where 
the  language  is  unskillful  or  inaccurate,  but  the  intent  can  be  clearly 
collected  from  the  writing,  it  is  the  duty  of  the  court  to  give  effect 
to  that  intent,  subject  only  to  the  proviso  that  no  rule  of  law  is  thereby 
violated.  1  Rev.  St.  p.  748,  §  2;  Purdy  v.  Hayt,  92  N.  Y.  at  page 
454. 

Courts  have,  from  an  early  day,  repeatedly  upheld  devises  by  im- 
plication, where  no  gift  of  the  premises  seems  to  have  been  made  in 
the  will,  in  formal  language.  Goodright  v.  Hoskins,  9  East,  306; 
Jackson  v.  Billinger,  18  Johns.  368;  In  re  Vowers,  113  N.  Y.  569, 
21  N.  E.  690.  They  are  justified  in  so  doing  whenever  such  a  con- 
struction expresses  what  the  testator  manifestly  intended  to  express. 
The  presumption  here  of  a  devise  to  Peter  by  implication  is  so  well 
founded  as  to  make  it  one  which  is  free  from  doubt  in  the  mind.  The 
facts,  which  are  disclosed  to  us,  combine  to  raise  it.  There  is  the 
gift  of  all  of  the  rents  and  the  profits  of  the  land  to  the  testator's 
brother,  after  the  widow's  annuity  is  paid.  There  is  a  gift  to  the 
brother  of  all  the  proceeds  of  a  sale  of  the  property,  beyond  what  is 
required  for  the  payment  of  the  widow's  annuity.  Though  testator 
left  other  brothers  and  sisters,  there  is  no  mention  made  of  them. 
There  is  the  further  significant  circumstance  that  some  power  over 
the  disposition  by  sale  of  the  land  is  given  to  Peter.  It  is  true  that  it 
is  an  authority  only  to  advise  or  to  consent  in  the  execution  of  the 
power  of  sale  by  the  executor;  but  when  we  consider  that  fact  in 
connection  with  the  fact  that  a  sale  would  result  in  vesting  in  him  the 
proceeds  beyond  any  cavil  and  doubt  an  inference  arises,  and  one  which 
seems  irresistible  to  my  mind,  that  the  testator  supposed  it  of  no  con- 
sequence to  his  brother's  interests  whether  the  estate  remained  intact, 
or  was  converted  into  money.  The  case  is  one  where  the  presumption 
is  independent  of  conjecture.  It  rises  beyond  a  mere  surmise,  for  it 
is  based  on  circumstances  which  leave  no  hesitation  in  the  mind  of  the 
court  as  to  what  was  the  testator's  purpose.  The  formal  words  of  a 
devise  to  Peter  may  be  absent,  but  it  is  perfectly  clear  that  it  was  the 
intention  to  devise  the  land,  and  that  would  be  consistent  with  the 
expressed  gift  of  the  proceeds  of  a  sale.  The  rule  of  construction  be- 
ing satisfied  by  the  presence  of  the  elements  establishing  a  presump- 


EXTRINSIC   EVIDENCE    OF   INTENTION  215 

tion,  the  courts  must  read  into  the  clause  a  devise  of  the  land  to  the 
brother,  subject  to  the  trust  provision  for  the  widow.  The  power  of 
sale  does  not  affect  the  question  of  Peter's  rights  other  than  to  empha- 
size them.  In  the  event  of  its  execution,  the  testator  gives  to  Peter 
all  of  the  proceeds  of  the  sale  not  required  to  pay  his  wife  $600  an- 
nually during  her  life  or  widowhood.  Nothing  could  more  strongly 
evidence  a  condition  of  mind  in  which  the  testator  believed  his  brother 
Peter  would  receive  all  of  the  estate,  subject  to  the  widow's  provision, 
and  whether  it  remained  in  the  shape  of  realty,  or  was  converted  into 
money,  than  does  this  language  of  the  clause. 

The  judgment  recovered  by  the  plaintiffs  should  be  reversed,  and  a 
judgment  entered  dismissing  her  complaint,  with  costs.    All  concur. 


II.  Extrinsic  Evidence  of  Intention 

1.  SURROUNDING  CIRCUMSTANCES  * 


GERMAN  PIONEER  VEREIN  v.  MEYER. 

(Court  of  Chancery  of  New  Jersey,  1906.    70  N.  J.  Eq.  192,  63  Ati.  835.) 

PITNEY,  V.  C.  The  complainant  is  a  benevolent  society,  incorporat- 
ed as  such  on  the  17th  day  of  May,  1888,  by  the  name  of  the  German 
Pioneer  Verein  of  Jersey  City,  New  Jersey.  The  declared  object  is 
"the  relief  of  such  of  the  members  thereof  as  shall,  by  sickness,  old 
age,  or  other  cause,  be  rendered  incapable  of  their  usual  occupation 
or  calling;  to  give  and  extend  benevolent  and  charitable  relief  and 
assistance  to  persons  who  are  not  members  or  incorporators ;  and 
other  charitable  objects  that  may  be  provided  for  in  the  constitution 
and  by-laws  of  such  incorporation."  The  defendant  is  the  executor 
of  one  George  A.  H.  Meyers,  a  German  who  lived  for  many  years 
in  Jersey  City,  and  died  on  the  5th  day  of  October,  1900,  testate  of  a 
will  wholly  in  his  own  handwriting,  in  which  he  gives  various  legacies ; 
among  others,  one  in  these  words :  "The  German  Turner  Home  Jersey 
City  one  thousand  dollars."  The  complainant  by  its  bill  claims  that 
it  is  the  legatee  intended  by  the  testator.  The  defendant,  who  is  also 
residuary  legatee  and  devisee,  by  his  answer  does  not  deny  that  he  has 
assets  sufficient  to  pay  all  the  legacies  given  by  the  will  but  simply 
denies  that  the  complainant  is  properly  described  or  can  be  properly 
held  to  be  the  legatee  intended,  and  further  sets  out  as  follows :  "And 
your  defendant  further  says  that  said  legacy  fails  by  reason  of  the 
fact  that  there  is  no  'German  Turner  Home'  in  Jersey  City,  and  what 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  105,  106. 


216  CONSTRUCTION   OF  WILLS CONTROLLING   PRINCIPLES 

the  deceased  meant  by  this  term  cannot  be  ascertained  with  reasonable 
certainty  and  accuracy  so  that  the  court  can  safely  make  a  decree 
that  the  said  legacy  should  be  paid  to  any  person  or  corporation." 

The  complainant  produced  convincing  proof  of  the  allegation  of 
fact  in  the  answer  that  there  is  no  "German  Turner  Home"  in  Jersey 
City,  but  alleged  in  its  bill  and  sustained  by  proof  the  following  facts : 
Some  time  before  the  date  of  the  complainant's  incorporation  an  old 
German  gentleman  by  the  name  of  Raymond  Rath,  a  resident  of  Jer- 
sey City,  died  testate  of  a  will  in  which  he  left  a  fund  of  $20,000  to 
be  paid  to  any  society  which  would  purchase  land  in  Jersey  City  fit 
to  be  occupied  by  a  building  for  a  home  for  old  people,  and  devote  it 
to  such  purpose  and  erect  a  home  on  it.  Whereupon  some  benevolent 
Germans  in  Jersey  City  formed  themselves  legally  into  the  association, 
the  complainant  herein,  raised  funds  among  themselves  sufficient  to 
purchase  the  necessary  land,  and  did  purchase  it,  and  altogether  quali- 
fied themselves  to  receive  and  did  receive  this  bequest  of  $20,000, 
and  with  it  erected  a  suitable  building  which  they,  in  memory  of  Mr. 
Rath,  named  the  "Raymond  Rath  Altenheim."  The  word  "Altenheim" 
is  a  German  word  which  means  home  for  old  people.  The  institution 
has  been  maintained  ever  since,  and  is  known  as  "the  home,"  and 
it  is  the  only  institution  of  its  kind  in  Jersey  City.  At  and  before  the 
time  of  the  complainant's  organization  there  was,  in  Jersey  City,  a 
hall  occupied  by  a  Turner's  Association.  The  word  "Turner"  in  Ger- 
man means  "athletic,"  and  "Turner  Hall"  means  an  "athletic  hall." 
It  was  clearly  proven  that  there  is  not  and  never  has  been  anything 
in  common  between  a  "Turnverein,"  athletic  association,  and  such 
an  association  as  the  complainant.  The  distinction  is  stated  by  an 
elderly  German  witness,  Mr.  Ringle,  thus:  "I  don't  think  there  is  a 
turnverein  in  the  world  that  has  a  tendency  to  support  poor  people. 
Every  turnverein  that  ever  I  heard  of  has  a  tendency  of  socialistic  or 
anarchistic  propensities,  and  learn  young  men  how  to  drink  beer  and 
liquor  of  large  quantities ;  that  is  about  the  tendency.  Now  you  have 
the  whole  thing  in  a  nut  shell."  But  it  so  happened  that  the  complain- 
ant association  both  before  and  after  its  organization,  while  engaged 
in  raising  money  to  buy  land  to  qualify  itself  to  be  the  legatee  of 
Mr.  Rath's  $20,000,  and  in  the  erection  of  the  building,  met  in  a 
Turner's  Hall  in  Jersey  City,  and  issued  circulars  with  a  printed  head 
as  follows,  "Deutschen  Pioneer  Verein,  Headquarters  Turner  Hall, 
259  First  Street,  Jersey  City."  Hence  the  idea  came  to  be  entertained 
by  some  persons  that  the  "home"  which  the  complainant  was  seeking 
to  establish  could  be  properly  known  and  designated  as  the  Turner 
Home.  The  complainant  continued  its  meetings  at  that  Turner  Hall 
until  it  was  abolished.  The  complainant  was  organized  in  May,  1888, 
and  the  will  herein  was  executed  in  January,  1900.  The  testator,  ac- 
cording to  the  proofs,  was  interested  from  the  start  in  the  complain- 
ant association  and  its  objects.  He  attended  meetings  of  the  society 
in  Turner  Hall,  and  later  on,  after  the  home  was  built,  in  the  home. 


EXTRINSIC    EVIDENCE   OF   INTENTION  217 

He  was  a  frequent  visitor  at  the  home,  and  made  contributions  in 
money  to  its  support,  and  was  elected  and  made  an  honorary  member 
thereof,  and  always  expressed  great  interest  in  its  welfare.  The  proofs 
further  show  that  the  institution  was  commonly  spoken  of  as  "the 
home." 

Now,  I  think,  when  we  consider  three  or  four  circumstances  in  the 
present  case,  all  difficulties  vanish.  In  the  first  place,  all  the  parties 
are  German.  In  the  next  place,  there  is  no  such  thing  in  Jersey  City 
or  elsewhere  known  as  a  "Turner  home."  In  the  next  place,  the  com- 
plainant's "home"  is  the  only  institution  of  the  kind  in  Jersey  City. 
Now  if  we  apply  to  that  situation  two  maxims,  the  first  one  expressed 
in  the  words  "ut  res  magis  valiat  quam  pereat,"  expressing  the  desire 
of  the  court  that  the  legacy  should  take  effect  rather  than  that  it  should 
lapse,  and  the  other,  "falsa  demonstratio  non  nocet,  cum  de  corpore 
constat,"  the  whole  difficulty  vanishes.  Here  the  false  description  lies 
in  the  use  of  the  word  "Turner,"  an  adjective.  Parol  evidence  to  show 
the  situation  and  surroundings  of  the  testator  and  the  objects  and 
persons  with  whom  he  was  familiar,  and  upon  whom  his  affections 
were  resting,  is  always  competent  in  these  cases.  It  does  not  contra- 
vene the  general  rule  of  law  against  the  use  of  parol  evidence  to  sup- 
plement wills.  It  does  not  attempt  to  show  what  the  testator  meant  to 
say,  but  simply  to  show  what  he  meant  by  what  he  did  say,  or,  as 
was  said  by  a  learned  English  judge  in  Richardson  v.  Watson,  4  B.  & 
Adol.  787,  "such  evidence  is  admissible  to  show,  not  what  the  testator 
intended,  but  what  he  understood  to  be  signified  by  the  words  he  used 
in  the  will." 

A  large  number  of  illustrative  cases  are  collected  by  Vice  Chancellor 
Wigram,  in  his  essay  on  "Extrinsic  Evidence  in  Aid  of  the  Interpreta- 
tion of  Wills,"  4th  Edition,  by  Knox  Wigram.  I  will  only  mention 
Beaumont  v.  Fell,  2  P.  Wms.  140,  Fonnerau  v.  Poyntz,  1  Br.  Ch.  472, 
Boys  v.  Williams,  2  Russ.  &  Myl.  689,  Wilson  v.  Squire,  1  Y.  &  Col. 
C.  C.  654.  The  case  in  hand  comes  peculiarly  within  Vice  Chancellor 
Wigram's  third  and  fifth  propositions.  I  will  content  myself  with 
quoting  the  author's  conclusion  (section  96,  p.  76)  that  the  authorities 
lead  to  the  following  proposition :  "Every  claimant  has  a  right  to  re- 
quire that  a  court  of  construction,  in  the  execution  of  its  office,  shall, 
by  means  of  extrinsic  evidence,  place  itself  in  the  situation  of  the  tes- 
tator, the  meaning  of  whose  language  it  is  called  upon  to  declare." 
Misdescriptions  of  benevolent  and  charitable  corporations  have  been 
a  fruitful  cause  of  the  exercise  of  the  power  of  the  court  in  cases 
like  the  present.  The  list  of  English  cases  will  be  found  in  2  Chitty, 
Equity  Index,  p.  1160,  Title  "Charity."  I  cite  the  following:  Cald- 
well  v.  Holmes,  2  Sm.  &  G.  31,  18  Jur.  396,  23  L.  J.  Ch.  594;  Kings 
College  Hospital  v.  Wheildon,  18  Beav.  30,  23  L.  J.  Ch.  537;  Bunting 
v.  Mariott,  19  Beav.  163 ;  Bradshaw  v.  Thompson,  2  Y.  &  Col.  C.  C. 
295,  7  Jur.  386;  Re  Maguire,  39  L.  J.  Ch.  710,  9  L.  R.  Eq.  632.  In 
the  United  States  a  list  is  found  in  Mr.  Randolph's  edition  of  Jarman 


218  CONSTRUCTION   OF   WILLS CONTROLLING  PRINCIPLES 

on  Wills,  vol.  1,  p.  750;  in  New  Jersey  in  3  Stew.  Dig.  393.  For 
these  reasons,  I  conclude  that  the  complainant  is  entitled  to  the  said 
sum  of  $1,000,  with  interest  from  one  year  from  the  date  of  the  tes- 
tator's death. 

At  the  hearing  a  faint  attempt  was  made  to  show  that  interest  should 
not  be  allowed  and  that  the  payment  of  the  legacy  should  be  deferred, 
but  I  think  it  failed.  I  have  said  that  the  defendant  executor  is  also 
residuary  legatee  and  devisee.  By  his  answer  he  shows  that  there  is 
abundance  of  property  to  pay  the  legacy,  and  he  was  also  met  by  an 
affidavit  made  and  filed  by  him  in  answer  to  an  application  for  an  in- 
terim injunction  which  gives  the  detail  of  the  property  and  the  legacies 
already  paid  and  those  remaining  to  be  paid,  showing  a  surplus  of 
nearly  $30,000.  The  only  objection  to  present  payment  was  that  the 
surplus  consisted  mainly  of  real  estate  which  the  defendant  desired 
to  hold  for  better  prices.  This,  of  course,  is  no  excuse. 

I  will  advise  a  decree  for  the  payment  of  the  legacy,  with  interest, 
against  the  defendant,  both  as  executor  and  individually,  with  a  coun- 
sel fee  of  $50. 


2.  DECLARATIONS  OF  TESTATOR  *• 


DOE  d.  MORGAN  MORGAN  v.  MARY  MORGAN. 
(Court  of  Exchequer,  1832.     1  Cromp.  &  M.  235,  3  Tyrwh.  179.) 

Ejectment  to  recover  possession  of  a  house  and  garden  in  the  village 
of  Mothvey,  in  the  county  of  Carmarthen.  On  the  4th  of  February, 
1816,  Evan  Morgan,  of  the  parish  of  Mothvey,  being  seised  in  fee 
simple  of  several  houses  and  gardens  in  the  parish  of  Mothvey,  made 
his  will,  containing  the  following  devise :  "I  give  unto  my  dear  wife, 
Elinor  Morgan,  the  part  of  my  house  and  the  part  of  my  garden  where 
Morgan  David  Morgan  and  Elizabeth  Walter  dwelleth,  unto  her  dur- 
ing her  natural  life;  and  after  her  decease  to  my  nephew,  Morgan 
Morgan,  and  his  right  heirs.  Also  I  give  and  bequeath  unto  my  neph- 
ew, Morgan  Morgan,  of  the  village  of  Mothvey,  the  part  where  I 
dwell,  and  likewise  the  part  of  my  garden  which  I  do  now  occupy,  to 
him  and  his  right  heirs,  after  my  decease.  Also  the  house  in  my  yard, 
I  give  to  the  above  said  Morgan  Morgan  after  my  decease.  Also  I 
order  the  above  Morgan  Morgan  to  pay  unto  my  sister,  Gwen  Price, 
of  the  parish  of  Cilycwm,  the  sum  of  £2  a  year  and  every  year,  for  the 
term  of  five  years,  from  the  abovesaid  houses ;  and  in  default  of  pay- 
ment, that  she  is  authorized  to  levy  and  distress  for  the  same,  every 

10  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  107-109. 


EXTRINSIC    EVIDENCE    OF    INTENTION  219 

half-year,  on  what  I  bequeathed  to  the  said  Morgan  Morgan  after  my 
decease.  Also  I  give  my  nephew,  Benjamin  Morgan,  that  part  of  my 
house  and  garden  where  he  dwells,  unto  him  and  his  right  heirs,  after 
my  decease." 

Soon  after  the  execution  of  this  will,  the  testator,  Evan  Morgan, 
died,  leaving  Morgan  Morgan  (the  eldest  son  of  his  only  brother, 
Benjamin  Morgan,  deceased,  who  resided  in  the  village  of  Mothvey, 
and  who  was  his  heir-at-law),  and  Morgan  Morgan,  the  lessor  of  the 
plaintiff  (who  was  a  son  of  a  sister  of  the  testator's,  and  who  lived 
near  Merthyr  Tydfil,  in  Glamorganshire),  and  Benjamin  Morgan,  a 
brother  of  the  latter  Morgan  Morgan,  his  only  three  nephews,  him 
surviving. 

On  the  testator's  death,  his  widow,  Elinor  Morgan,  took  possession 
of  the  house  and  garden  devised  to  her  for  life,  and  Morgan  Morgan, 
the  nephew,  who  lived  at  Mothvey,  took  possession  of  the  remainder 
of  the  testator's  property  devised  by  his  will,  except  the  portion  of  it 
devised  to  Benjamin. 

This  Morgan  Morgan  died  in  1831,  without  issue,  having  made  a 
will  devising  all  his  property  to  his  wife,  Mary  Morgan,  the  defendant ; 
and,  on  his  death,  the  defendant  became  possessed  of  all  the  premises 
devised  by  his  will;  and  which,  with  the  exception  of  the  premises 
devised  by  Evan  Morgan  to  Benjamin,  and  the  house  and  garden  de- 
vised to  his  widow,  Elinor,  and  then  in  her  possession,  were  the  whole 
subject-matter  of  Evan  Morgan's  will.  The  said  Elinor  Morgan  after- 
wards died ;  and,  on  her  death,  the  defendant  entered  into  possession 
of  the  house  and  garden  held  by  the  said  Elinor  Morgan. 

This  ejectment  was  now  brought  by  the  lessor  of  the  plaintiff,  Mor- 
gan Morgan,  being,  as  before  mentioned,  a  nephew  of  the  testator, 
Evan  Morgan,  to  recover  the  premises  first  mentioned  in  his  will. 

On  the  trial  of  the  cause  before  Alderson,  J.,  at  the  last  assizes  for 
the  county  of  Carmarthen,  evidence  of  the  state  of  the  family  of  the 
original  testator,  Evan  Morgan,  and  of  the  existence  of  his  two 
nephews,  named  Morgan  Morgan,  having  been  elicited,  it  was  insisted, 
on  the  part  of  the  defendant,  that  a  latent  ambiguity  was  raised ;  and 
that,  consequently,  parol  evidence  was  admissible  to  explain  it.  The 
learned  Judge  was  of  this  opinion ;  and,  evidence  of  Evan  Morgan's 
declarations,  contemporaneous  with  the  will,  having  been  received,  a 
verdict  passed  for  the  defendant. 

John  Evans  now  moved  for  a  new  trial,  on  the  ground  of  the  in- 
admissibility  of  such  evidence.  He  urged,  that,  as  the  second  devise 
in  the  will  was  to  a  Morgan  Morgan,  therein  described  as  "of  the 
village  of  Mothvey,"  whereas  the  devise  in  question  was  to  "Morgan 
Morgan,"  simpliciter,  the  will,  on  the  face  of  it,  carried  the  respective 
premises  to  different  parties.  There  were,  therefore,  distinct  objects 
of  the  testator's  bounty,  satisfying  the  terms  of  the  will;  and,  that 
being  so,  there  was  no  necessity  for  extrinsic  evidence;  and  therefore 


220  CONSTRUCTION  OF  WILLS CONTROLLING  PRINCIPLES 

parol  evidence  ought  not  to  have  been  received.    Doe  v.  Westlake,  4 
B.  &  A.  57,  is  in  point. 

THE  COURT  took  time  to  consider;    and.  after  conferring  with  the 
learned  Judge  who  tried  the  cause,  refused  the  rule. 


DOE  d.  HISCOCKS  v.  HISCOCKS. 

(Court  of  Exchequer,  1839.     5  Mees.  &  W.  363.) 

LORD  ABINGER,  C.  B.11  This  was  an  action  of  ejectment,  brought 
on  the  demise  of  Simon  Hiscocks  against  John  Hiscocks.  The  ques- 
tion turned  on  the  words  of  a  devise  in  the  will  of  Simon  Hiscocks, 
the  grandfather  of  the  lessor  of  the  plaintiff  and  of  the  defendant.  By 
his  will,  Simon  Hiscocks,  after  devising  estates  to  his  son  Simon  for 
life,  and  from  and  after  his  death  to  his  grandson  Henry  Hiscocks  in 
tail-male,  and  making,  as  to  certain  other  estates,  an  exactly  similar 
provision  in  favour  of  his  son  John  for  life;  then,  after  his  death, 
the  testator  devises  those  estates  to  "my  grandson  John  Hiscocks,  eld- 
est son  of  the  said  John  Hiscocks."  It  is  on  this  devise  that  the  ques- 
tion wholly  turns. 

In  fact,  John  Hiscocks  the  father  had  been  twice  married;  by  his 
first  wife  he  had  Simon,  the  lessor  of  the  plaintiff,  his  eldest  son :  the 
eldest  son  of  the  second  marriage  was  John  Hiscocks  the  defendant. 
The  devise,  therefore,  does  not,  both  by  name  and  description,  apply 
to  either  the  lessor  of  the  plaintiff,  who  is  the  eldest  son,  but  whose 
name  is  Simon,  nor  to  the  defendant,  who,  though  his  name  is  John, 
is  not  the  eldest  son. 

The  cause  was  tried  before  Mr.  Justice  Bosanquet,  at  the  Spring 
Assizes  for  the  county  of  Devon,  1838,  and  that  learned  Judge  ad- 
mitted evidence  of  the  instructions  of  the  testator  for  the  will,  and  of 
his  declarations  after  the  will  was  made,  in  order  to  explain  the  am- 
biguity in  the  devise,  arising  from  this  state  of  facts ;  and  the  verdict 
having  been  found  for  the  lessor  of  the  plaintiff,  a  rule  has  been  ob- 
tained for  a  nonsuit  or  new  trial,  on  the  ground  that  such  evidence  of 
intention  was  not  receivable  in  this  case.  And  after  fully  considering 
the  question,  which  was  very  well  argued  on  both  sides,  we  think  that 
there  ought  to  be  a  new  trial. 

It  must  be  admitted  that  it  is  not  possible  altogether  to  reconcile  the 
different  cases  that  have  been  decided  on  this  subject;  which  makes  it 
the  more  expedient  to  investigate  the  principles  upon  which  any  evi- 
dence to  explain  the  will  of  a  testator  ought  to  be  received.  The  ob- 
ject in  all  cases  is  to  discover  the  intention  of  the  testator.  The  first 
and  most  obvious  mode  of  doing  this  is  to  read  his  will  as  he  has  writ- 
ten it,  and  collect  his  intention  from  his  words.  But  as  his  words  refer 
to  facts  and  circumstances  respecting  his  property  and  his  family,  and 

11  The  statement  of  facts  is  omitted. 


EXTRINSIC    EVIDENCE    OF   INTENTION  221 

others  whom  he  names  or  describes  in  his  will,  it  is  evident  that  the 
meaning  and  application  of  his  words  cannot  be  ascertained,  without 
evidence  of  all  those  facts  and  circumstances.  To  understand  the 
meaning  of  any  writer,  we  must  first  be  apprised  of  the  persons  and 
circumstances  that  are  the  subjects  of  his  allusions  or  statements;  and' 
if  these  are  not  fully  disclosed  in  his  work,  we  must  look  for  illustra- 
tion to  the  history  of  the  times  in  which  he  wrote,  and  to  the  works 
of  contemporaneous  authors.  All  the  facts  and  circumstances,  there- 
fore, respecting  persons  or  property,  to  which  the  will  relates,  are  un- 
doubtedly legitimate,  and  often  necessary  evidence,  to  enable  us  to 
understand  the  meaning  and  application  of  his  words. 

Again, — the  testator  may  have  habitually  called  certain  persons  or 
things  by  peculiar  names,  by  which  they  were  not  commonly  known. 
If  these  names  should  occur  in  his  will,  they  could  only  be  explained 
and  construed  by  the  aid  of  evidence  to  show  the  sense  in  which  he 
used  them,  in  like  manner  as  if  his  will  were  written  in  cipher,  or  in 
a  foreign  language.  The  habits  of  the  testator  in  these  particulars 
must  be  receivable  as  evidence  to  explain  the  meaning  of  his  will. 

But  there  is  another  mode  of  obtaining  the  intention  of  the  testator, 
which  is  by  evidence  of  liis  declarations,  of  the  instructions  given  for 
his  will,  and  other  circumstances  of  the  like  nature,  which  are  not  ad- 
duced for  explaining  the  words  or  meaning  of  the  will,  but  either  to 
supply  some  deficiency,  or  remove  some  obscurity,  or  to  give  some  ef- 
fect to  expressions  that  are  unmeaning  or  ambiguous. 

Now,  there  is  but  one  case  in  which  it  appears  to  us  that  this  sort  of 
evidence  of  intention  can  properly  be  admitted,  and  that  is,  where  the 
meaning  of  the  testator's  words  is  neither  ambiguous  nor  obscure,  and 
where  the  devise  is  on  the  face  of  it  perfect  and  intelligible,  but,  from 
some  of  the  circumstances  admitted  in  proof,  an  ambiguity  arises,  as 
to  which  of  the  two  or  more  things,  or  which  of  the  two  or  more 
persons  (each  answering  the  words  in  the  will,)  the  testator  intended 
to  express. 

Thus,  if  a  testator  devise  his  manor  of  S.  to  A.  B.,  and  has  two 
manors  of  North  S.  and  South  S.,  it  being  clear  he  means  to  devise 
one  only,  whereas  both  are  equally  denoted  by  the  words  he  has  used, 
in  that  case  there  is  what  Lord  Bacon  calls  "an  equivocation,"  i.  e., 
the  words  equally  apply  to  either  manor,  and  evidence  of  previous  in- 
tention may  be  received  to  solve  this  latent  ambiguity ;  for  the  inten- 
tion shows  what  he  meant  to  do ;  and  when  you  know  that,  you  im- 
mediately perceive  that  he  has  done  it  by  the  general  words  he  has 
used,  which,  in  their  ordinary  sense,  may  properly  bear  that  construc- 
tion. 

It  appears  to  us  that,  in  all  other  cases,  parol  evidence  of  what  was 
the  testator's  intention  ought  to  be  excluded,  upon  this  plain  ground, 
that  his  will  ought  to  be  made  in  writing;  and  if  his  intention  cannot 
be  made  to  appear  by  the  writing,  explained  by  circumstances,  there 
is  no  will. 


222  CONSTRUCTION   OF  WILLS CONTROLLING   PRINCIPLES 

It  must  be  owned,  however,  that  there  are  decided  cases  which  are 
not  to  be  reconciled  with  this  distinction  in  a  manner  altogether  satis- 
factory. Some  of  them,  indeed,  exhibit  but  an  apparent  inconsistency. 
Thus,  for  example,  in  the  cases  of  Doe  v.  Huthwaite,  3  Barn.  &  Aid. 
632,  and  Bradshaw  v.  Bradshaw,  the  only  thing  decided  was,  that,  in 
a  case  like  the  present,  some  parol  evidence  was  admissible.  There, 
however,  it  was  not  decided  that  evidence  of  the  testator's  intention 
ought  to  be  received.  The  decisions,  when  duly  considered,  amount 
to  no  more  than  this,  that  where  the  words  of  the  devise,  in  their 
primary  sense,  when  applied  to  the  circumstances  of  the  family  and 
the  property,  make  the  devise  insensible,  collateral  facts  may  be  re- 
sorted to,  in  order  to  show  that  in  some  secondary  sense  of  the  words 
— and  one  in  which  the  testator  meant  to  use  them — the  devise  may 
have  a  full  effect.  Thus,  again,  in  Cheyney's  Case,  and  in  Counden  v. 
Clarke,  Hob.  32,  "the  averment  is  taken"  in  order  to  show  which  of 
two  persons,  both  equally  described  within  the  words  of  the  will,  was 
intended  by  the  testator  to  take  the  estate ;  and  the  late  cases  of  Doe 
d.  Morgan  v.  Morgan,  1  Cromp.  &  M.  235,  and  Doe  d.  Gord  v.  Needs, 
2  Mees.  &  W.  129,  both  in  this  court,  are  to  the  same  effect.  So,  in 
the  case  of  Jones  v.  Newman,  1  W.  Bl.  60,  according  to  the  view  the 
court  took  of  the  facts,  the  case  may  be  referred  to  the  same  principles 
as  the  former.  The  court  seem  to  have  thought  the  proof  equivalent 
only  to  proof  of  there  being  two  J.  C.'s,  strangers  to  each  other,  and 
then  the  decision  was  right,  it  being  a  mere  case  of  what  Lord  Bacon 
calls  equivocation. 

The  cases  of  Price  v.  Page,  4  Ves.  Jr.  680,  Still  v.  Hoste,  6  Madd. 
192,  and  Careless  v.  Careless,  19  Ves.  604,  do  not  materially  vary  in 
principle  from  those  last  cited.  They  differ,  indeed,  in  this,  that  the 
equivocal  description  is  not  entirely  accurate;  but  they  agree  in  its 
being  (although  inaccurate)  equally  applicable  to  each  claimant;  and 
they  all  concur  in  this,  that  the  inaccurate  part  of  the  description  is 
either,  as  in  Price  v.  Page,  a  mere  blank,  or,  as  in  the  other  two 
cases,  applicable  to  no  person  at  all.  These,  therefore,  may  fairly  be 
classed  also  as  cases  of  equivocation;  and,  in  that  case,  evidence  of 
the  intention  of  the  testator  seems  to  be  receivable.  But  there  are 
other  cases  not  so  easily  explained,  and  which  seem  at  variance  with 
the  true  principles  of  evidence.  In  Selwood  v.  Mildmay,  3  Ves.  jun. 
306,  evidence  of  instructions  for  the  will  was  received.  That  case  was 
doubted  in  Miller  v.  Travers,  8  Bing.  244;  but  perhaps,  having  been 
put  by  the  master  of  the  rolls  as  one  analogous  to  that  of  the  devise 
of  all  a  testator's  freehold  houses  in  a  given  place,  where  the  testator 
had  only  leasehold  houses,  it  may,  as  suggested  by  Lord  Chief  Justice 
Tindal  in  Miller  v.  Travers,  be  considered  as  being  only  a  wrong  ap- 
plication to  the  facts  of  a  correct  principle  of  law.  Again,  in  Hamp- 
shire v.  Peirce,  2  Ves.  Sr.  216,  Sir  John  Strange  admitted  declarations 
of  the  intentions  of  the  testatrix  to  be  given  in  evidence,  to  show  that 
by  the  words,  "the  four  children  of  my  niece  Bamfield,"  she  meant  the 


EXTRINSIC    EVIDENCE   OF   INTENTION  223 

four  children  by  the  second  marriage.  It  may  well  be  doubted  whether 
this  was  right,  but  the  decision  on  the  whole  case  was  undoubtedly 
correct ;  for  the  circumstances  of  the  family,  and  their  ages,  which  no 
doubt  were  admissible,  were  quite  sufficient  to  have  sustained  the  judg- 
ment without  the  questionable  evidence.  And  it  may  be  further  ob- 
served, that  the  principle  with  which  Sir  J.  Strange  is  said  to  have 
commenced  his  judgment,  is  stated  in  terms  much  too  large,  and  is  so 
far  inconsistent  with  later  authorities.  Beaumont  v.  Fell,  2  P.  Wms. 
141,  though  somewhat  doubtful,  can  be  reconciled  with  true  principles, 
upon  this  ground,  that  there  was  no  such  person  as  Catherine  Earnley, 
and  that  the  testator  was  accustomed  to  address  Gertrude  Yardley 
by  the  name  of  Gatty.  This,  and  other  circumstances  of  the  like  na- 
ture, which  were  clearly  admissible,  may  perhaps  be  considered  to 
warrant  that  decision ;  but  there  the  evidence  of  the  testator's  declara- 
tions as  to  his  intention  of  providing  for  Gertrude  Yardley  was  also 
received ;  and  the  same  evidence  was  received  at  nisi  prius  in  Thomas 
v.  Thomas,  6  Term  R.  671,  and  approved  on  a  motion  for  a  new  trial, 
by  the  dicta  of  Lord  Kenyon  and  Mr.  Justice  Lawrence.  But  these 
cases  seem  to  us  at  variance  with  the  decision  in  Miller  v.  Travers, 
which  is  a  decision  entitled  to  great  weight.  If  evidence  of  intention 
could  be  allowed  for  the  purpose  of  showing  that  by  Catherine  Earn- 
ley and  Mary  Thomas,  the  respective  testators  meant  Gertrude  Yard- 
ley  and  Elinor  Evans,  it  might  surely  equally  be  adduced  to  prove  that, 
by  the  county  of  Limerick,  a  testator  meant  the  county  of  Clare.  Yet 
this  was  rejected,  and  we  think  rightly.  We  are  prepared  on  this  point 
(the  point  in  judgment  in  the  case  of  Miller  v.  Travers)  to  adhere  to 
the  authority  of  that  case.  Upon  the  whole,  then,  we  are  of  opinion, 
that  in  this  case  there  must  be  a  new  trial. 

Where  the  description  is  partly  true  as  to  both  claimants,  and  no 
case  of  equivocation  arises,  what  is  to  be  done  is  to  determine  whether 
the  description  means  the  lessor  of  the  plaintiff  or  the  defendant.  The 
description,  in  fact,  applies  partially  to  each,  and  it  is  not  easy  to  see 
how  the  difficulty  can  be  solved.  If  it  were  res  Integra,  we  should  be 
much  disposed  to  hold  the  devise  void  for  uncertainty;  but  the  cases 
of  Doe  v.  Huthwaite,  Bradshaw  v.  Bradshaw,  and  others,  are  authori- 
ties against  this  conclusion.  If,  therefore,  by  looking  at  the  surround- 
ing facts  to  be  found  by  the  jury,  the  court  can  clearly  see,  with  the 
knowledge  which  arises  from  those  facts  alone,  that  the  testator  meant 
either  the  lessor  of  the  plaintiff  or  the  defendant,  it  may  so  decide, 
and  direct  the  jury  accordingly;  but  we  think  that,  for  this  purpose, 
they  cannot  receive  declarations  of  the  testator  of  what  he  intended 
to  do  in  making  his  will.  If  the  evidence  does  not  enable  the  court  to 
give  such  a  direction  to  the  jury,  the  defendant  will  indeed  for  the 
present  succeed ;  but  the  claim  of  the  heir-at-law  will  probably  prevail 
ultimately,  on  the  ground  that  the  devise  is  void  for  uncertainty. 

Rule  absolute  for  a  new  trial. 


224  CONSTRUCTION DESCRIPTION   OF  SUBJECT-MATTER 


CONSTRUCTION  (Continued)— DESCRIPTION  OF  SUB- 
JECT-MATTER 

I.  Words  Operative  to  Pass  Entire  Estate  * 


WARNER  v.  WILLARD. 
(Supreme  Court  of  Errors  of  Connecticut,  1886.     54  Conn.  470,  9  Atl.  136.) 

GRANGER,  J.  This  is  an  amicable  suit  to  obtain  a  construction  of 
the  will  of  William  Willard.  The  first  clause  of  the  will  is  as  fol- 
lows :  "I  give  and  bequeath  to  my  beloved  and  faithful  wife,  Jane  G. 
Willard,  the  use  and  improvement  of  the  real  estate  of  which  I  may 
die  possessed,  during  her  natural  life.  I  also  give  to  her,  the  said  Jane 
G.,  all  my  household  furniture  of  every  name  and  kind."  The  testa- 
tor then  gives  to  one  daughter  $2,500 ;  to  another  $2,000 ;  to  his  son 
$2,000  and  his  gold  watch,  gold-headed  cane,  and  wardrobe;  and  to 
an  adopted  son  $1,000.  Then  follows  the  sixth  clause  of  the  will, 
which  is  as  follows :  "All  the  residue  of  my  estate  of  whatever  name 
or  kind,  after  payment  of  my  debts  and  funeral  charges,  I  give  and 
bequeath  to  my  wife,  Jane  G.  Willard."  The  residue  of  the  estate  of 
course  includes  the  fee  of  the  real  estate,  of  which  only  the  life-use 
had  been  given  by  the  first  clause,  and  which  had  not  been  disposed  of 
by  any  other  clause  of  the  will,  unless  from  the  whole  will  we  can 
gather  the  intent  of  the  testator  not  to  include  it. 

The  defendant  contends  that,  taking  this  clause  in  connection  with 
the  first,  it  is  evident  that  the  testator  intended  to  give  his  wife  only  a 
life-use  of  the  real  estate,  and  that  this  gift  of  the  residue  must  there- 
fore be  regarded  as  intended  to  embrace  only  the  personal  estate.  The 
facts  are  found  with  regard  to  the  amount  of  the  testator's  personal 
and  real  estate,  but  they  throw  no  light  upon  this  question.  It  is  diffi- 
cult to  discover  any  reason  why  the  testator  should  have  given  his  wife 
a  life-estate  only  in  the  first  clause  of  the  will,  and  the  fee  of  the  same 
real  estate  by  the  residuary  clause.  But  the  question  for  us  to  consider 
is  not  why  he  did  what  he  did,  but  simply  what  has  he  in  fact  done. 
We  must  look  for  his  intention  only  in  the  will  itself,  and  in  that  he 
has  expressed  himself  in  language  free  from  all  ambiguity.  He  not 
only  speaks  of  "all  the  residue,"  but  of  "all  the  residue  of  my  estate  of 
whatever  name  or  kind."  It  would  hardly  be  possible  for  language 
to  be  more  comprehensive. 

Were  the  matter  left  in  any  doubt,  there  is  a  further  consideration 
that  would  be  decisive.  If  the  fee  of  the  real  estate  does  not  pass  by 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  110. 


WORDS    OPERATIVE   TO   PASS   REAL   ESTATE  225 

the  residuary  clause,  then  it  is  not  disposed  of,  and  becomes  intestate 
estate.  But  there  is  always  a  presumption  that  when  a  party  makes  a 
will  he  intends  to  dispose  of  all  his  property,  and  not  to  die  intestate 
as  to  any  part  of  it.  "Every  intendment  is  to  be  made  against  holding 
a  man  to  be  intestate  who  sits  down  to  dispose  of  the  residue  of  his 
property."  Booth  v.  Booth,  4  Ves.  407.  To  the  same  effect  are  Hig- 
gins  v.  Dwen,  100  111.  554,  556;  Smith  v.  Smith,  17  Grat.  (Va.)  268; 
Irwin  v.  Zane,  15  W.  Va.  646. 

Our  conclusion  is  that  the  widow  took  the  fee  of  the  real  estate,  and 
the  superior  court  is  so  advised.    The  other  judges  concurred. 


II.  Words  Operative  to  Pass  Real  Estate  a 


TORREY  v.  TORREY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1904.     70  N.  J.  Law,  672,  59 

Atl.  450.) 

DIXON,  J.  The  question  in  this  case  is,  did  the  following  will  devise 
the  testator's  real  estate? 

"I  direct  that  all  my  just  debts  and  funeral  expenses  be  paid  as 
soon  as  may  be. 

"I  give  and  bequeath  to  my  dear  wife  Martha  Torrey  all  of  this 
world's  goods  of  which  I  may  be  possessed  at  the  time  of  my  death, 
confident  that  she  will  care  for  our  dear  children  with  the  same  love 
and  devotion  which  she  has  ever  shown  them. 

"I  appoint  my  wife  Martha  Torrey  the  sole  executrix  of  this  my 
last  will  and  testament." 

The  position  taken  for  the  negative  is  that  the  word  "goods"  can- 
not include  realty.  No  doubt,  that  word,  standing  alone,  is  usually 
thus  restricted;  but  it  does  not  follow  that  the  clause,  "all  of  this 
world's  goods  of  which  I  may  be  possessed  at  the  time  of  my  death," 
is  subject  to  the  same  limitation.  In  using  such  an  expression,  one's 
mind  is  dwelling,  not  on  any  factitious  distinctions  among  present 
possessions,  but  upon  the  distinction  between  the  good  things  enjoyed 
in  this  world  and  those  hoped  for  in  the  next.  It  is  therefore  quite 
credible  that  the  testator  by  these  words  meant  all  that  he  had.  Wheth- 
er such  was  his  meaning  must  be  determined,  not  by  giving  the  at- 
tention to  single  words,  but  by  considering  the  entire  will  and  the 
surroundings  of  the  testator  when  he  executed  it,  and  by  ascribing 
to  him,  so  far  as  his  language  permits,  the  common  impulses  of  our 
nature. 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  111, 
Du  NM.C  AS.  WILLS — 15 


226  CONSTRUCTION DESCRIPTION   OP  SUBJECT-MATTER 

In  attempting  to  interpret  any  will,  the  first  suggestion  naturally 
arising  is  that  the  testator  intended  to  dispose  thereby  of  all  his  prop- 
erty. If  such  intention  be  imputed  to  this  testator,  then  the  gift  to 
his  wife  should  include  his  realty,  for,  outside  of  that  gift  and  the 
payment  of  debts  and  funeral  expenses,  no  disposition  of  property  ap- 
pears. Indeed,  if  this  gift  was  not  intended  to  include  realty,  the 
making  of  the  will  was  hardly  worth  the  trouble  of  writing  it,  for  he 
then  had,  besides  his  real  estate,  only  a  few  shares  of  stock  in  a 
building  association  and  his  household  effects — not  enough  to  pay 
his  creditors  when  he  died.  The  manifest  purpose  of  the  testator 
in  disposing  of  his  property  may  be,  and  here  is,  of  much  importance 
in  arriving  at  his  intention  as  to  the  extent  of  the  gift.  He  gave  "all 
of  this  world's  goods"  of  which  he  might  be  possessed  at  his  death 
to  his  "dear  wife,"  "confident  that  she  will  care  for  our  dear  chil- 
dren with  the  same  love  and  devotion  which  she  has  ever  shown 
them."  These  words  indicate  very  strongly  his  purpose  to  enable  his 
wife,  so  far  as  lay  in  his  power,  to  care  for  their  dear  children  as  her 
proven  love  and  devotion  toward  them  would  prompt  her  to  do.  Such 
a  purpose  was  futile  if  he  placed  in  her  hands  only  his  little  personal 
property,  which  at  his  death  would  be  wholly  absorbed  by  complying 
with  his  preceding  direction  that  his  debts  and  funeral  expenses  should 
be  at  once  paid. 

But  it  is  argued  that  these  considerations  are  not  sufficient  to  over- 
come a  certain  legal  presumption  against  disinheriting  the  heir.  That 
presumption  originated  in  an  artificial  system  which  does  not  exist 
among  us — a  system  designed  to  avoid  the  division  of  landed  estates. 
So  far  as  it  accords  with  the  natural  impulse  to  provide  for  one's 
family  and  kindred,  it  still  deserves  weight.  Thus  far  it  favors  our 
interpretation  of  this  will,  for  evidently  the  testator  was  confident 
that  his  wife's  care,  impelled  by  her  love  and  devotion,  and  furnished 
with  effective  means,  would  be  more  conducive  to  the  welfare  of  their 
dear  children,  who  were  still  young,  than  the  mere  fee  simple  of  his 
land. 

We  think  the  Camden  circuit  court  rightly  decided  that  the  testa- 
tor's real  estate  passed  to  his  wife,  and  therefore  its  judgment  should 
be  affirmed. 


WORDS   OPERATIVE   TO   PASS   PERSONALTY  227 


III.  Words  Operative  to  Pass  Personalty  8 


In  re  ARNOLD'S  ESTATE. 

(Supreme  Court  of  Pennsylvania,  1913.    240  Pa.  261,  87  Atl.  590,  Ann.  Cas. 

1915A,   23.) 

MOSCHZISKER,  J.  This  case  involves  the  construction  of  the  follow- 
ing will :  "I,  Anna  H.  Arnold,  in  case  of  my  death  give  my  portion 
of  the  household  goods  to  my  sister,  Ella  R.  Arnold.  If  she  is  not 
living,  they  are  to  be  given  to  my  sister  Mary  Arnold  Babcock.  My 
jewelry  and  other  personal  things,  are  to  be  divided  equally  among 
my  two  sisters,  Ella  R.  Arnold  and  Mary  Arnold  Babcock." 

The  testatrix  left  an  estate  consisting  of  corporate  stocks  and  bonds 
and  cash  in  bank  appraised  at  $158,750.15,  and  household  furniture, 
jewelry,  and  clothing  appraised  at  $300.  Her  next  of  kin  were  the 
two  sisters  named  in  the  will  and  three  brothers.  One  of  the  brothers 
died  shortly  after  the  decedent,  and  his  widow  and  administratrix  pe- 
titioned the  orphans'  court  for  an  accounting.  The  petitioner  con- 
tended that  the  will  now  before  us  did  not  contemplate  or  dispose 
of  moneys  or  securities,  but  should  be  confined  in  its  operation  to 
personal  articles  belonging  to  the  decedent  of  a  purely  domestic  na- 
ture, and  that  the  testatrix  had  died  intestate  as  to  the  bulk  of  her 
possessions.  In  reply  the  legatees  contended  that  the  decedent's  en- 
tire estate  passed  to  them  under  the  will.  The  court  below  decided  in 
favor  of  the  legatees,  and  the  petitioner  has  appealed. 

The  appellant  assigns  for  error  the  decree  dismissing  her  petition, 
and  the  admission  of  testimony  offered  to  show  in  what  sense  the 
testatrix  habitually  used  the  word  "things"  in  connection  with  her  be- 
longings, property  or  estate.  The  controversy  arises  over  the  meaning 
of  the  phrase  "and  other  personal  things,"  as  employed  by  the  decedent 
in  her  will.  Bouvier's  Law  Dictionary  states  that  by  the  word  "things" 
is  understood  every  object,  except  man,  which  may  become  an  active 
subject  of  right;  Anderson's  Law  Dictionary  defines  it  as  "subject- 
matter,  substance,  effect,  any  object  that  may  be  possessed" ;  Words 
and  Phrases  says,  "The  word  'things'  is  of  extensive  signification, 
and  in  common  parlance  may  intend  all  matters  of  substance  in  con- 
tradistinction to  persons;"  Webster  gives  as  a  meaning,  "Whatsoever 
may  be  possessed  or  owned;"  and  the  Standard  Dictionary,  "a  sub- 
ject of  property  and  dominion."  If  so  intended,  the  word  "things" 
may  be  given  as  extensive  a  meaning  as  the  word  "effects"  or  "goods" 
or  "assets"  or  "property,"  etc.,  and,  if  it  was  so  intended  in  the  pres- 
ent will,  then  Anna  H.  Arnold  disposed  of  her  entire  estate.  In 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  112. 


228  CONSTRUCTION DESCRIPTION   OF  SUBJECT-MATTER 

Jacobs'  Estate,  140  Pa.  268,  21  Atl.  318,  11  L.  R.  A.  767,  23  Am.  St. 
Rep.  230,  the  word  "money"  was  construed  to  include  real  estate,  and 
in  the  English  case  of  Wright  v.  Shelton,  18  Jurist,  445,  the  phrase 
"worldly  goods"  was  given  a  like  construction;  again,  in  Tofield  v. 
Tofield,  11-  East,  *246,  real  estate  was  held  to  pass  under  the  general 
words  "personal  effects"  following  an  enumeration  of  several  items 
of  things  personal.  Other  English  authorities  along  this  line  are  stat- 
ed by  Judge  Penrose  in  Pearson's  Estate,  10  Pa.  Dist.  R.  189,  and 
in  Golz's  Estate,  8  Pa.  Dist.  R.  647.  Also  see  Williams  on  Executors, 
1015. 

Thus  it  may  be  seen  that  words  of  the  character  employed  in  this 
will  are  susceptible  of  a  comprehensive  meaning,  and  if  the  two  sisters 
named  by  the  testatrix  were  her  only  near  kin,  under  the  rule  that 
an  intestacy  is  always  to  be  avoided  when  possible,  the  writing  could 
be  readily  construed  as  passing  all  her  belongings.  The  will  only 
becomes  equivocal  when  the  fact  that  the  testatrix  had  three  other 
heirs  at  law  is  made  to  appear;  and  it  is  this  circumstance  which  rais- 
es the  inquiry  as  to  whether  or  not  she  intended  to  dispose  of  her 
whole  estate.  "When  the  intention  is  clearly  expressed,  but  a  doubt 
exists,  not  as  to  the  intention,  but  as  to  the  object  to  which  the  in- 
tention applies,  a  latent  ambiguity  arises."  Safe  Deposit  &  Trust 
Co.  v.  Bovaird  &  Seyfang  Mfg.  Co.,  229  Pa.  295,  301,  78  Atl.  268, 
269.  "Where  an  ambiguity  is  introduced  by  extrinsic  circumstanc- 
es, in  such  case  parol  evidence  is  admitted."  Wusthoff  v.  Dra- 
court,  3  Watts,  240,  243;  Forquer's  Estate,  216  Pa.  331,  339,  66 
Atl.  92,  96,  8  Ann.  Cas.  1146.  "Parol  evidence  is  admissible  *  *  * 
to  explain  latent  ambiguities  in  a  will  or  to  apply  its  provisions  to  the 
subject  or  person  intended,  where  the  description  is  *  *  *  too 
general  to  be  understood."  Best  v.  Hammond,  55  Pa.  409,  412.  "To 
aid  the  context  by  extrinsic  proof  of  the  circumstances  and  situation 
of  the  testator  when  it  was  executed  is  constantly  permitted  at  the 
court's  discretion,  and  this  constitutes  a  proper,  indeed  often  indis- 
pensable, matter  of  inquiry  when  construing  a  will.  For  whatever  a 
will  may  set  forth  on  its  face,  its  application  is  to  persons  and  things 
external."  Gilmor's  Estate,  154  Pa.  523,  530,  26  Atl.  614,  616,  35 
Am.  St.  Rep.  855.  "If  the  evidence  from  the  context  is  not  conclusive, 
but  furnishes  an  argument  only,  parol  evidence  will  be  admitted." 
Hawkins  on  Wills  (2d  Ed.)  p.  13.  "The  evidence  is  not  adduced  to 
control  the  will  but  to  rebut  a  presumption  from  matter  extrinsic  to 
it."  Sharp  v.  Wightman,  205  Pa.  285,  288,  54  Atl.  888,  889. 

So,  if  it  be  granted  that,  since  the  testatrix  had  three  heirs  at  law 
who  were  not  mentioned  in  her  will,  the  meaning  of  the  general  words 
employed  by  her,  when  applied  to  the  situation,  may  be  viewed  as 
involved  in  some  doubt,  then  it  was  proper  to  admit  and  consider  the 
extrinsic  evidence  here  introduced.  This  evidence  was  not  to  show 
the  intention  of  Anna  H.  Arnold  but  to  fathom  the  exact  meaning  of 
the  words  she  employed;  that  is,  it  was  not  offered  to  prove  directly 


WORDS   OPERATIVE   TO   PASS   PERSONALTY  229 

what  the  testatrix  meant,  but  to  show  the  precise  meaning  of  her 
words,  so  that  her  intention  might  be  deduced  therefrom.  As  to  the 
character  of  the  evidence  depended  upon  for  this  purpose,  Hawkins 
on  Wills,  10,  states :  "It  is  to  be  observed  that  evidence  in  the  shape 
of  sayings,  etc.,  of  the  testator  may  be,  in  certain  cases,  adduced  to 
show  in  what  sense  he  habitually  used  certain  words,  even  where 
the  description  is  not  equivocal  (provided  the  sense  thus  sought  to  be 
put  on  them  does  not  contravene  their  ordinary  and  legitimate  mean- 
ing) ;  this  being  distinct  from  evidence  adduced  to  show  in  what 
sense  he  used  the  words  on  the  particular  occasion  of  writing  his  will" 
— and  the  following  is  given  as  an  illustration  of  the  text :  "In  Duke 
of  Leeds  v.  Amherst,  9  Jurist,  359,  Lord  Lyndhurst  held  that  the 
fact  of  the  testator  having  been  accustomed  to  describe  a  particular 
picture  belonging  to  himself  as  a  portrait  might  be  admitted  to  show 
that  it  properly  passed  under  that  description  in  his  will."  We  think 
that  under  the  circumstances  of  the  case  at  bar  the  extrinsic  evidence 
offered  was  admissible  and  competent;  and  this  brings  us  to  a  view 
of  the  findings  of  the  court  below  and  to  a  consideration  of  the  con- 
struction placed  upon  the  will  in  question. 

The  learned  court  found  that  the  will  was  in  the  decedent's  own 
handwriting;  that  she  was  not  a  highly  educated  person;  that  the 
two  sisters  named  in  the  will  were  very  close  and  attentive  to  the 
testatrix,  while  the  three  brothers  had  maintained  no  intimate  rela- 
tions with  her  for  several  years ;  that  a  trust  company  had  entire 
charge  of  her  property;  and  "that  it  was  habitual  with  her  to  speak 
of  the  matters  constituting  her  estate  in  the  hands  of  the  trust  com- 
pany as  her  'things'  *  *  *  ;"  and  in  this  connection  the  court  adds : 
"The  testimony  as  to  the  habit  of  the  testatrix  in  speaking  of  the  con- 
stituents of  her  estate  as  her  'things'  is  so  full  and  emphatic  that  in 
my  opinion  it  is  strongly  persuasive  evidence  that  by  the  words  'and 
other  personal  things'  she  meant  her  entire  residuary  personal  estate ; 
and  that  this  fact,  considered  with  the  fact  of  the  special  personal 
relations  existing  between  the  testatrix  and  her  sisters,  that  they  alone 
are  mentioned  in  her  will  as  the  objects  of  her  bounty,  and  that  her 
brothers  passed  out  of  her  immediate  life  before  the  death  of  her 
father,  shows  plainly  an  intention  of  the  testatrix  to  bequeath  to  her 
sisters,  Ella  R.  Arnold  and  Mary  Arnold  Babcock,  her  entire  residu- 
ary personal  estate." 

In  view  of  the  findings  of  the  court  below,  it  is  not  difficult  to  be- 
lieve that  the  testatrix  intended  to  dispose  of  her  entire  estate  and  that 
she  meant  the  expression  "and  other  personal  things"  to  be  read  as 
though  she  had  written  after  it,  "consisting  of  my  stocks,  bonds, 
moneys  and  other  things  of  value."  The  strength  of  the  contention  to 
the  contrary  depends  largely,  if  not  entirely,  upon  a  rule  of  construc- 
tion that,  where  a  testator  enumerates  a  particular  kind  of  chattels  and 
couples  with  the  enumeration  a  general  term,  such  as  "effects,"  or  any 
equivalent  word,  the  general  term  is  to  be  restricted  to  the  particular 


230  CONSTRUCTION DESCRIPTION   OF  SUBJECT-MATTER 

species  of  property  named;  and  the  appellant  cites  Lippincott's  Es- 
tate, 173  Pa.  368,  34  Atl.  58,  and  Schmidth's  Estate,  183  Pa.  641,  38 
Atl.  1086,  to  show  that  this  rule  should  have  been  applied  here.  We 
do  not  feel  that  either  of  these  cases  controls  the  present  one;  it 
falls  more  nearly  under  the  principle  of  Reimer's  Estate,  159  Pa.  212, 
28  Atl.  186,  where,  as  here,  the  language  of  the  will  was  capable  of 
an  interpretation  which  would  carry  the  entire  estate  and  the  applica-' 
tion  of  the  rule  contended  for  would  have  led  to  an  intestacy;  it  was 
there  held  that  the  word  "effects,"  following  an  enumeration  of  par- 
ticular kinds  of  property,  would  not  be  restricted  to  things  ejusdem 
generis,  but  would  be  construed  to  cover  the  testator's  full  residuary 
estate  not  otherwise  disposed  of.  While  the  case  at  bar  is  a  close  one, 
yet,  on  the  whole,  we  are  not  convinced  that  error  was  committed 
in  placing  a  like  construction  upon  the  present  will. 

The  assignments  are  overruled,  and  the  decree  is  affirmed  at  the 
cost  of  the  appellant. 


IV.  The  Residuary  Clause4 

BATES  v.  KINGSLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1913.    215  Mass.  62,  102  N.  E.  306.) 
See,  ante,  p.  205,  for  a  report  of  the  case. 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  113,  114. 


CONSTRUCTION — DESCRIPTION  OF  BENEFICIARY  231 


CONSTRUCTION    (Continued)— DESCRIPTION    OF   BENE- 
FICIARY 

I.  Technical  and  Non-Technical  Terms 

1.  CHILDREN  * 


DUNN  v.  CORY. 
(Court  of  Chancery  of  New  Jersey,  1898.    56  N.  J.  Eq.  507,  39  Atl.  368.) 

PITNEY,  V.  C.  This  bill  is  filed  by  the  executors  of  Pemberton  Brit- 
tin  for  directions  as  to  the  distribution  of  his  estate,  and  involves  the 
construction  of  several  clauses  in  his  will.  By  the  second  paragraph 
he  gives  several  pecuniary,  legacies ;  among  others,  three  as  follows : 
(1)  "To  the  child  of  John  Primrose,  one  thousand  dollars;"  (2)  "to 
the  children  of  Pettit  B.  Primrose,  one  thousand  dollars;"  (3)  "to  the 
child  of  Sarah  Roy,  one  thousand  dollars."  Further  on,  in  the  same 
paragraph,  he  says :  "In  case  of  the  death  of  any  of  the  above  lega- 
tees before  me,  the  legacy  shall  not  lapse,  but  shall  go  to  their  lawful 
issue,  if  they  leave  such  issue." 

1.  In  the  case  of  the  bequest  to  "the  child  of  John  Primrose":    In 
point  of  fact,  John  Primrose,  who  was  the  cousin  of  the  testator, 
left  several  children;    and  the  question  is  whether  the  word  "child" 
should   be  construed   "children,"   and  the  legacy  should  be  divided 
among  all  the  children.     I  am  of  the  opinion  that  it  should. 

2.  The  next  case  is  that  of  a  bequest  "to  the  children  of  Pettit  B. 
Primrose,  one  thousand  dollars."     Pettit  B.  Primrose  had  had  twelve 
children,  seven  of  whom  were  living  at  the  date  of  the  will,  five  had 
died  prior  to  the  date  of  the  will,  only  three,  however,  leaving  chil- 
dren, and  one  died  between  the  date  of  the  will  and  the  date  of  the  tes- 
tator's death,  leaving  children,  and  six  survived  the  testator.     The 
question  is  whether  the  children  of  those  who  died  prior  to  the  date 
of  the  will  are  entitled  to  come  in  with  the  children  of  the  one  who 
died  after  the  date  of  the  will,  and  with  those  who  survived  the  tes- 
tator.    Of  course,  we  are  to  ascertain  the  intention  of  the  testator 
by  considering  the  language  used  as  applied  to  all  the  circumstances; 
and,  in  the  absence  of  the  use  of  technical  language  which  has  attained 
a  settled  meaning,  prior  decisions  are  of  use  only  to  show  what  mean- 
ing different  judges  have  put  upon  similar  language.     The  general 
rule  undoubtedly  is  that  no  person  can  come  under  the  description 
of  a  "legatee"  unless  he  is  alive  at  the  date  of  the  will.    And  the  gen- 

i  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  115. 


232  CONSTRUCTION DESCRIPTION  OF   BENEFICIARY 

eral  rule  also  is  that  the  word  "child"  does  not  mean  "grandchild," 
or  "children"  "grandchildren."  An  exception  to  this  rule,  presently 
to  be  stated,  is  founded  in  necessity,  in  order  to  prevent  the  entire 
failure  of  the  provision.  There  were  children  of  Pettit  B.  Primrose 
living  at  the  date  of  the  will,  and  the  bequest  will  take  effect  without 
including  the  descendants  of  those  who  died  before  the  making  of  the 
will.  So  that  the  argument  from  necessity  does  not  apply.  Nor,  in 
this  instance,  does  the  testator's  express  command  that  "the  legacy 
shall  not  lapse"  apply. 

The  question,  then,  is  whether  or  not  those  children  of  Pettit,  who 
died  in  testator's  lifetime  can  be  properly  classed  as  "legatees,"  under 
the  so-called  substitutionary  clause  above  recited.  If  the  language 
of  that  clause  had  been,  "In  case  of  the  death  of  any  of  the  above- 
named  children  before  me,  the  legacy  shall  not  lapse,  but  shall  go  to 
their  lawful  issue,"  I  should  have  thought,  on  the  authority  of  the 
case  of  Outcalt  v.  Outcalt,  42  N.  J.  Eq.  500,  8  Atl.  532,  that  the  de- 
scendants of  those  dying  before  the  date  of  the  will  would  have  taken, 
on  the  ground  that  the  gift  would  have  been  an  independent  gift,  and 
not  substitutionary.  I  have  looked  at  a  large  number  of  cases,  and, 
notwithstanding  the  great  apparent  conflict  of  authority  in  England 
and  also  in  this  country,  I  am  constrained  to  adopt  the  view  that  the 
construction  adopted  by  Sir  Richard  Malins  in  Re  Potter's  Trust 
(1869)  L.  R.  8  Eq.  52,  followed  by  him  in  subsequent  cases,  the  latest 
being  In  re  Lucas'  Will  (1880)  17  Ch.  Div.  788,  was  the  correct  one, 
and  was  more  likely  to  fulfill  the  expressed  wishes  of  the  testator  than 
that  adopted  by  the  judges  in  the  opposite  line  of  cases.  The  authori- 
ties up  to  that  date  are  all  collected  in  the  last-stated  case.  The  dis- 
tinction in  what  may  be  called  the  "substitutionary  clause"  between 
naming  the  persons  who  originally  were  the  direct  object  of  the  gift, 
describing  them  by  their  names  or  classes,  and  the  word  "legatee,"  was 
pointed  out  and  acted  upon  by  the  same  judge  in  Hunter  v.  Cheshire, 
8  Ch.  App.  751,  and  his  decision  was  affirmed  on  appeal.  Upon  the 
whole,  I  think  the  use  of  the  word  "legatees"  prevents  the  operation 
in  this  case  of  the  so-called  "substitutionary  clause"  in  favor  of  the 
descendants  of  those  children  who  died  before  the  making  of  the  will. 

3.  Next  is  the  case  of  legacy  "to  the  child  of  Sarah  Roy,  $1,000." 
Sarah  Roy  had  but  one  child,  which  died  a  few  months  before  the 
will  was  made,  leaving  children;  and  the  question  is  whether  or  not 
the  word  "child,"  in  that  case,  can  be  construed  as  meaning  "grand- 
children." It  is  but  a  truism  to  say  that  the  word  "child"  does  not 
ordinarily  include  grandchildren ;  and  since,  for  the  reasons  stated  in 
the  case  of  the  "children  of  Pettit  B.  Primrose,"  the  use  of  the  word 
"legatee"  in  the  substitutionary  clause  forbids  the  application  of  that 
clause  in  this  case  as  well  as  in  the  other,  the  question  remains  wheth- 
er there  is  anything  in  the  circumstances  which  shows  that  the  tes- 
tator, by  the  use  of  the  word  "child"  in  that  connection,  referred  to 


TECHNICAL   AND   NON-TECHNICAL   TERMS  233 

the  descendants  generally  of  Sarah  Roy.  An  examination  of  the  will 
shows  that  the  word  "grandchildren"  nowhere  appears  in  it,  although 
a  large  sum  is  given  in  trust  for  four  certain  beneficiaries  severally 
for  life,  and  at  their  death  to  their  children  or  next  of  kin,  and  that  in 
the  same  paragraph  with  the  bequest  under  consideration  there  are  no 
less  than  thirteen  bequests  to  the  "children"  of  a  person  named.  So 
that  the  circumstance  relied  on  in  some  of  the  cases  that  the  testator 
did  mention  and  provide  for  children  in  one  part  of  his  will,  and  for 
grandchildren  in  the  same  connection  or  in  another  part,  and  hence 
could  not  have  intended  by  the  word  "child"  to  include  "grandchil- 
dren," does  not  apply  here.  It  further  appears  that  many  of  the  ben- 
eficiaries were  cousins,  and  lived  at  a  distance,  and  were  much  scatter- 
ed; and  it  did  not  appear  that  the  testator  was  acquainted  with  the 
situation  of  their  families,  and  the  number  or  names  of  their  children. 
The  inference  would  be  the  contrary. 

In  almost  all  the  cases  in  which  judges  have  held  that  the  word 
"child,"  cannot  be  construed  to  mean  "grandchildren,"  an  exception 
has  been  noted  as  possible  to  arise  out  of  the  necessity  of  the  case. 
It  is  thus  stated  by  Chancellor  Green  in  Brokaw  v.  Peterson,  15  N. 
J.  Eq.  194,  at  page  198:  "The  word  'children'  does  not,  ordinarily 
and  properly  speaking,  comprehend  grandchildren  or  issue  generally. 
Their  being  included  in  that  term  is  only  permitted  in  two  cases, 
namely,  from  necessity,  which  occurs  when  the  will  would  remain 
inoperative  unless  the  sense  of  the  word  'children'  were  extended 
beyond  its  natural  import,  and  where  the  testator  has  clearly  shown 
by  other  words  that  he  did  not  intend  to  use  the  term  'children'  in 
its  proper  actual  meaning,  but  in  a  more  extensive  sense."  And  the 
same  thought  is  expressed  by  Chancellor  Runyon  in  Feit's  Ex'rs  v. 
Vanatta,  21  N.  J.  Eq.  84,  at  page  85,  where  he  says:  "The  settled  rule 
in  the  construction  of  wills  is  that  it  [the  word  "children"]  will  not 
be  construed  to  include  grandchildren  unless  there  is  something  in 
the  context  to  show  that  the  testator  intended  that  it  should  include 
grandchildren,  or  unless  the  provision  will  be  inoperative  without  such 
construction." 

In  using  this  language,  these  jurists  simply  followed  that  of  other 
judges.  In  Crooke  v.  Brookeing,  2  Vern.  106,  at  page  108,  before  the 
lord  commissioners  of  the  great  seal,  while  it  was  held  that  "chil- 
dren" did  not  ordinarily  mean  "grandchildren,"  all  admitted  that,  if 
there  had  been  no  child,  the  grandchildren  might  have  taken  by  the 
devise  to  the  children  of  the  testator.  Again,  Lord  Alvanley,  in 
Reeves  v.  Brymer,  4  Ves.  692,  said :  "  'Children'  may  mean  'grand- 
children' where  there  can  be  no  other  construction,  but  not  other- 
wise." And  Sir  William  Grant,  in  Radcliffe  v.  Buckley,  10  Ves.  195, 
at  page  200,  says :  "The  proposition  that  'children'  may  mean  'grand- 
children' where  there  can  be  no  other  construction,  but  not  other- 
wise, is  consistent  with  and  founded  upon  previous  cases.  There 
are  two  cases  in  which  that  word  has  received  another  construction : 


234  CONSTRUCTION DESCRIPTION  OF   BENEFICIARY 

First,  the  case  of  necessity,  where  the  will  would  remain  inopera- 
tive unless  the  sense  is  extended;  next,  where  the  testator  has  clear- 
ly shown  by  other  words  that  he  does  not  use  the  word  'children'  in 
the  proper  sense,  but  means  it  in  the  more  extensive  signification." 
The  same  judge,  in  the  case  of  Earl  of  Oxford  v.  Churchill,  3  Ves.  & 
B.  59,  at  page  69,  said:  "Where  there  is  a  total  want  of  children, 
grandchildren  have  been  let  in,  under  a  liberal  construction  of  the 
word  'children.' "  This  exception  was  practically  applied  in  the  case 
of  Gale  v.  Bennet  (1768)  Amb.  681,  by  Lord  Camden. 

Lord  Romilly,  in  Fenn  v.  Death,  23  Beav.  73  (better  reported  in 
2  Jur.  [N.  S.]  700),  held  the  same  thing.  The  bequest  there  was:  "In 
trust  for  the  children  of  my  late  mother's  half-brother,  Thomas  Death, 
and  which  children  shall,  or  to  such  one  or  more  of  them  as  shall,  be 
living  at  my  decease,  if  more  than  one  such  child,  to  be  equally  divid- 
ed between  them  as  tenants  in  common."  None  of  the  children  of 
Thomas  Death  were  living  at  the  date  of  the  will,  and  it  was  held 
that  the  grandchildren  were  entitled.  And  Sir  John  Stuart,  V.  C., 
in  Berry  v.  Berry,  3  Giff.  134,  7  Jur.  (N.  S.)  752,  applied  the  doctrine 
of  necessity,  and  held  the  word  "children"  to  mean  grandchildren. 
And  finally,  in  the  more  recent  case  of  In  re  Smith  (Lord  v.  Hay- 
ward,  1887)  35  Ch.  Div.  558,  Kay,  J.  (afterwards  lord  justice  of  ap- 
peal), applied  the  rule,  following  Berry  v.  Berry  and  Fenn  v.  Death. 
The  case  was  that  a  testator  gave  his  residuary  estate  to  trustees,  to 
divide  the  proceeds  into  six  shares,  and  to  pay  one  of  such  shares  to 
the  children  of  his  deceased  sister;  and  he  gave  the  other  five-sixths, 
by  similar  terms,  to  the  children  of  five  deceased  persons.  At  the 
date  of  the  will,  there  were  no  children  of  the  sister  living,  but  there 
were  two  grandchildren,  who  both  survived  the  testator.  Held,  that 
the  two  grandchildren  took  the  one-sixth  given  to  the  children  of  the 
deceased  sister.  In  giving  judgment,  the  learned  judge  uses  this 
language:  "If  the  testator,  on  the  face  of  his  will,  gives  a  legacy  to 
the  children  of  a  deceased  person,  mentioning  that  person  as  being 
dead,  and  at  the  date  of  the  will  there  are  no  children  of  that  person, 
but  there  are  grandchildren,  then  the  court,  on  the  principle,  'Ut  res 
magis  valeat,'  holds  that  the  gift  takes  effect  in  favor  of  the  grand- 
children." The  doctrine  of  these  cases  is  stated  to  be  settled  law  by 
Mr.  Williams  (2  Wms.  Ex'rs  [Rand.  &  T.  Ed.]  p.  359,  and  Mr.  Ran- 
dolph's note  on  page  362,  where  American  cases  are  cited). 

My  conclusion,  therefore,  is  that  the  grandchildren  of  Sarah  Roy 
will  take.  None  of  the  cases  in  New  Jersey  are  inconsistent  with  this 
view.  The  bequest  in  Feit's  Ex'rs  v.  Vanatta  took  effect  during  the 
lifetime  of  the  first  taker;  so  that  Chancellor  Runyon  felt  that  there 
was  no  necessity  to  apply  the  rule  in  that  case.  So  the  rule  that  I 
have  adopted  has  no  application  to  the  circumstances  in  Brokaw  v. 
Peterson,  15  N.  J.  Eq.  194.  The  question  was  not  raised  or  discussed, 
and  was  not  necessarily  involved,  in  the  case  of  Van  Gieson  v.  How- 
ard, 7  N.  J.  Eq.  462. 


TECHNICAL  AND  NON-TECHNICAL  TERMS  235 


2.  ISSUE* 


SOPER  v.  BROWN. 

(Court  of  Appeals  of  New  York,  1892.     136  N.  Y.  244,  32  N.  B.  768,  32  Am. 

St.  Rep.  731.) 

ANDREWS,  J.  Thomas  Poole  died  in  1831,  leaving  surviving  him 
five  daughters,  Letitia,  Eliza,  Mary,  Sarah,  and  Margaret.  At  his 
death  he  owned  a  farm  in  what  is  now  the  city  of  Brooklyn.  By  his 
will,  after  giving  a  small  legacy  to  his  daughter  Letitia,  he  devised  his 
farm  in  specific  parcels  to  trustees  upon  separate  trusts  for  the  benefit 
of  his  four  daughters  Eliza,  Mary,  Sarah,  and  Margaret,  respectively, 
for  life.  The  remainder  embraced  in  the  trust  for  his  daughter  Eliza 
was  devised  in  the  language  following :  "Upon  the  death  of  my  said 
daughter  Eliza  my  further  will  is  that  the  aforesaid  [lands]  in  this 
clause  of  my  will  devised  for  the  use  and  benefit  of  my  said  daughter 
Eliza,  with  the  appurtenances  thereunto  belonging,  shall  go  in  fee  sim- 
ple as  tenants  in  common  to  the  lawful  issue  of  my  said  daughter  Eliza, 
if  more  than  one,  share  and  share  alike ;  and  for  want  or  in  default  of 
such  issue  then  to  all  my  grandchildren  who  may  then  be  living,  as  ten- 
ants in  common,  his,  her,  or  their  heirs  or  assigns,  forever."  The  re- 
mainder in  the  lands  devised  in  trust  to  his  other  daughters  for  life  are 
given  in  similar  language.  The  daughters  Letitia,  Eliza,  and  Mary 
were  married  at  the  time  of  the  making  of  the  will  and  at  the  death  of 
the  testator,  and  the  daughters  Letitia  and  Eliza  each  had  children. 
The  two  children  of  Eliza  died  after  the  death  of  the  testator,  and  be- 
fore the  death  of  their  mother,  but  each  left  children  surviving  her, 
and  on  the  death  of  the  testator's  daughter  Eliza,  there  were  living  two 
children  of  a  deceased  son  of  Eliza,  three  children  of  Eliza's  deceased 
daughter  Margaretta,  and  three  children  of  a  deceased  child  of  Mar- 
garetta.  The  descendants  of  Eliza  living  at  her  death  were  therefore 
five  grandchildren  and  three  great-grandchildren. 

The  plaintiffs  are  children  of  the  testator's  daughter  Letitia,  and 
claim  a  share  of  the  lands  in  controversy,  part  of  the  lands  embraced 
in  the  trust  constituted  by  the  will  of  Thomas  Poole  for  the  benefit  of 
his  daughter  Eliza,  on  the  ground  that  Eliza  left  no  "issue"  surviving 
her  at  her  death,  and  that  therefore- the  gift  over,  for  the  want  or  in 
default  of  such  issue,  to  "all  the  [testator's]  grandchildren"  took  effect. 
This  claim,  if  well  founded,  excludes  the  descendants  of  Eliza  from 
any  share  in  the  property  of  the  testator,  since  none  of  them  stood  in 
the  relation  of  grandchildren  to  the  testator,  Thomas  Poole,  and  the 
whole  of  Eliza's  portion  is  diverted  from  her  line,  and  goes  to  children 
of  her  sisters. 

2  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  115. 


236  CONSTRUCTION DESCRIPTION  OF   BENEFICIARY 

The  question  turns  upon  the  meaning  of  the  word  "issue"  in  the  gift 
in  remainder  "to  the  lawful  issue  of  my  said  daughter  Eliza."  It  is 
insisted  on  the  part  of  the  plaintiffs  that  the  word  means  "children," 
and  that  the  testator's  intention  was  to  provide  for  his  grandchildren 
only,  and  to  cut  off  on  the  death  of  any  daughter  all  in  the  line  of 
descent  from  such  daughter,  who  were  not  in  that  relation  to  the  testa- 
tor. This  contention,  which  naturally  shocks  the  sense  of  justice,  must 
be  maintained  if  required,  by  settled  rules  of  construction.  They  can- 
not be  varied  to  meet  a  supposed  hardship  in  a  particular  case,  although 
the  court  would  be  justified  in  searching  the  will  to  discover,  if  pos- 
sible, some  explanatory  or  qualifying  provision  which  would  indicate 
that  particular  words  were  used  in  a  sense  consistent  with  what  seems 
to  be  under  the  circumstances  the  natural  intention,  and  the  ordinary 
dictates  of  feeling  and  affection. 

It  is  claimed  that  the  word  "issue"  used  in  a  will,  when  unexplained 
by  the  context,  has  the  meaning  of  "children."  If  this  predicate  is 
justified,  it  bears  strongly  in  favor  of  the  construction  claimed  by  the 
plaintiffs,  for  it  must  be  admitted  that  there  are  but  very  slight  indica- 
tions, if  any,  in  the  will,  that  the  word  was  used  in  any  other  than  its 
legal  sense.  But  I  am  of  opinion  that  the  word  "issue"  in  a  deed  or 
will,  when  used  as  a  word  of  purchase,  and  where  its  meaning  is  not 
otherwise  defined  by  the  context,  and  there  are  no  indications  that  it 
was  used  in  any  other  than  its  legal  sense,  comprehends  all  persons  in 
the  line  of  descent  from  the  ancestor,  and  has  the  same  meaning  as 
"descendants ;"  and  that  while  it  embraces  the  children  of  the  ancestor, 
it  is  because  they  are  descendants  in  common  with  all  other  persons 
who  can  trace  direct  descent  from  a  common  source.  It  is  common 
learning  that  this  has  been  the  accepted  meaning  of  the  word  "issue" 
in  that  large  class  of  limitations  to  issue  of  the  first  taker,  accompanied 
with  a  gift  over  in  default  of  issue.  This  question,  which  has  given 
rise  to  a  mass  of  abstruse  and  difficult  learning  has  been  whether  in 
particular  deeds  or  wills  an  indefinite  failure  of  issue  was  intended, 
which  would  render  the  gift  over  void  as  a  perpetuity,  or  a  failure  of 
issue  living  at  the  death  of  the  first  taker,  or  on  the  happening  of  some 
other  event  within  the  period  allowed  by  law  for  restraint  of  alienation. 

In  this  state  the  statute  has  wisely  solved  these  distressing  perplexi- 
ties, and  makes  a  limitation  over  to  issue  on  the  death  of  the  first  taker 
to  mean  issue  living  at  his  death.  1  Rev.  St.  p.  724,  §  22.  But  it  was 
never  contended,  so  far  as  I  know,  in  these  cases,  that  the  word  "issue" 
meant  "children,"  to  the  exclusion  of  remoter  descendants.  There  are 
many  authorities  on  wills  in  which  the  word  has  been  construed  to 
mean  "children"  only.  These  authorities  rest  upon  the  undisputed 
principle  that  words  used  by  a  testator  in  his  will  are  to  be  interpreted 
in  the  sense  which  he  attributed  to  them,  where  it  appears  by  the  con- 
text that  they  were  not  used  in  their  strict  legal  sense.  It  is  but  one  of 
the  applications  of  the  doctrine  that  in  the  construction  of  wills  the 


TECHNICAL   AND   NON-TECHNICAL   TERMS  237 

intention  of  the  testator  is  to  govern  when  not  inconsistent  with  the 
rules  of  law. 

In  Sibley  v.  Perry,  7  Ves.  522,  the  word  "issue"  was  held  to  mean 
''children,"  because  coupled  with,  and  as  the  antithesis  of,  the  word 
"parent;"  but  Lord  Eldon,  while  reaching  this  conclusion  upon  the 
words  of  the  particular  will,  said:  "Upon  all  the  cases  this  word 
["issue"]  prima  facie  will  take  in  all  descendants  beyond  immediate 
issue."  Palmer  v.  Horn,  84  N.  Y.  516,  was  a  case  of  the  same  char- 
acter, where  the  word  "issue"  was  held  to  mean  "children,"  from  its 
juxtaposition  with  the  latter  word,  which  explained  and  limited  it.  Mr. 
Jarman  and  other  text  writers  state  the  rule,  in  conformity  with  the 
great  weight  of  authority,  that,  while  the  meaning  of  the  word  "issue" 
is  not  inflexible,  and  may  in  some  cases  designate  "children"  only,  de- 
pending upon  the  intention  as  disclosed  by  the  whole  instrument,  never- 
theless, where  its  meaning  is  not  restrained  by  the  context,  it  is  to  be 
interpreted  as  synonymous  with  "descendants,"  and  as  comprehending 
objects  of  every  degree,  and  that  the  construction  is  the  same  whether 
used  in  a  bequest  or  devise.  2  Jarm.  Wills,  101 ;  2  Williams,  Ex'rs, 
1112;  2  Washb.  Real  Prop.  561.  In  the  early  case  of  Cook  v.  Cook, 
2  Vern.  545,  which  was  the  case  of  a  devise  to  the  issue  of  J.  S.,  it  was 
held  that  children  and  grandchildren  were  comprehended. 

It  is  urged  that  the  popular  meaning  of  the  word  "issue"  is  synony- 
mous with  "child"  or  "children."  If  this  were  admitted,  it  would  not 
control  the  construction  of  a  formal  legal  will,  where  words  are  sup- 
posed to  be  used  in  their  legal  sense,  in  the  absence  of  a  contrary  in- 
dication. In  a  note  in  Kent's  Commentaries,  (volume  4,  p.  278,)  said 
to  have  been  written  by  the  author,  it  is  stated  that  the  word  "issue" 
is  generally  used  as  synonymous  with  "child"  or  "children;"  and  in 
Ralph  v.  Carrick,  11  Ch.  Div.  882,  James,  L.  J.,  remarks  that  this  was 
its  popular  meaning.  But  with  great  respect  I  am  not  sure  that  this  is 
correct  as  a  general  proposition.  It  is  very  unusual,  I  think,  for  a 
parent  to  speak  of  his  children  as  his  "issue,"  either  during  life  or  in  a 
testamentary  instrument.  When  one  speaks  of  the  "issue"  of  a  person 
deceased,  I  think  in  most  cases  he  would  intend  his  descendants  in 
every  degree.  In  popular  language,  if  one  speaks  of  the  issue  of  a  mar- 
riage, he  probably  means  the  children  of  the  marriage.  The  collocation 
of  the  words  "issue"  and  "marriage"  makes  this,  in  the  case  supposed, 
the  natural  meaning.  It  was  said  by  Lord  Loughborough  in  Freeman 
v.  Parsley,  3  Ves.  421,  that  "in  the  common  use  of  language,  as  well  as 
in  the  application  of  the  word  'issue'  in  wills  and  settlements,  it  means 
'all  indefinitely.'  "  This  seems  to  me  to  be  nearer  the  truth  than  the  op- 
posite view,  or  at  least  I  am  of  the  opinion  that  in  the  majority  of  cases 
where  the  word  "issue"  is  used  it  is  used  in  its  legal  sense.  There  are 
cases  where  it  may  be  conjectured  that  this  broad  meaning  would  pro- 
duce a  result  not  contemplated  by  a  testator. 

It  is  settled  that  under  a  gift  to  "issue,"  where  the  word  is  used 
without  any  terms  in  the  context  to  qualify  its  meaning,  the  children  of 


238  CONSTRUCTION — DESCRIPTION  OF  BENEFICIARY 

the  ancestor,  and  the  issue  of  such  children,  although  the  parent  is  liv- 
ing, as  well  as  the  issue  of  deceased  children,  take  in  equal  shares  per 
capita,  and  not  per  stirpes,  as  primary  objects  of  the  disposition.  It 
might  well  be  doubted  whether  a  testator  actually  contemplated  that 
the  children  of  a  living  parent  would  take  an  equal  interest  with  the 
parent  under  the  word  "issue,"  or  that  the  issue  of  a  deceased  child 
should  not  take,  by  representation,  the  share  of  its  parent.  Lord 
Loughborough  referred  to  this  in  Freeman  v.  Parsley,  supra,  and,  while 
he  held  that  all  were  entitled  equally  per  capita,  said  that  he  expected 
that  it  was  contrary  to  the  intention,  and  regretted  that  there  was  no 
medium  between  the  total  exclusion  of  the  grandchildren  and  admitting 
them  to  share  with  their  parents.  But  in  a  case  like  the  present  one, 
where  there  is  a  gift  to  a  child  for  life,  and  over  on  the  death  of  such 
child  in  default  of  issue,  it  would  be  an  unnatural  construction  which 
would  exclude  all  but  the  immediate  children  of  the  first  taker  in 
favor  of  the  other  branches  of  the  family.  The  reasonable  construc- 
tion in  such  cases  is  that  the  gift  over  was  intended  to  take  effect  only 
on  the  extinction  of  the  line  of  descent  from  the  first  taker. 

We  perceive  no  sufficient  indication  in  the  will  now  in  question  which 
would  justify  overriding  the  legal  meaning  of  the  word  "issue,"  and 
confining  it  to  the  sense  of  "children."  The  fact  that  the  gift  over  in 
default  of  issue  of  any  child  was  to  "grandchildren,"  and  that  remoter 
descendants  could  not  take  under  this  limitation,  is  quite  indecisive. 
The  testator  may  have  considered  that  he  had  made  sufficient  provision 
for  the  remote  descendants  of  his  daughters  in  providing  that  their 
issue  should  take  the  portion  of  the  ancestor,  and  that,  in  providing 
for  the  contingency  of  the  death  of  any  one  of  these  without  issue,  it 
was  not  necessary  or  desirable  to  have  regard  to  any  except  grand- 
children. Whatever  may  have  influenced  the  testator  in  confining  the 
gift  over  to  grandchildren,  this  affords  no  definite  indication  of  a  pur- 
pose to  restrict  the  meaning  of  the  word  "issue"  in  the  primary  gift. 
The  same  remark  is  applicable  to  the  gift  of  the  residuary  personal 
estate  to  his  grandchildren  on  the  death  of  the  last  survivor  of  his  four 
daughters. 

The  will  received,  we  think,  a  proper  construction  in  the  courts  be- 
low. Even  if  the  construction  given  may  be  doubtful,  it  is  a  settled 
rule  that,  where  a  will  is  capable  of  two  constructions,  one  of  which 
would  exclude  the  issue  of  a  deceased  child,  and  the  other  permit  such 
issue  to  participate  in  a  remainder  limited  upon  a  life  estate  given  to 
the  ancestor,  the  latter  should  be  adopted.  In  re  Brown,  93  N.  Y.  295, 
and  cases  cited.  The  judgment  should  be  affirmed.  All  concur. 


TECHNICAL  AND   NON-TECHNICAL  TERMS  239 


3.  Hems1 

FORREST  v.  PORCH. 
(Supreme  Court  of  Tennessee,  1898.    100  Tenn.  391,  45  S.  T^.  676.) 

CALDWEXL,  J.  H.  R.  Reece  died  testate  at  his  residence,  in  Humph- 
reys county,  Tenn.;  leaving,  him  surviving,  a  widow,  brothers,  and 
sisters,  nephews  and  nieces  whose  parents  had  died,  and  grand  neph- 
ews and  nieces  whose  parents  and  grandparents  had  died.  Of  these 
collateral  kindred  there  were  34  in  number,  and  they  were  the  tes- 
tator's only  heirs  at  law. 

This  litigation  involves  a  construction  of  the  second,  fourth,  and 
fifth  clauses  of  the  will.  The  second  clause  is  as  follows :  "I  give  and 
bequeath  to  my  beloved  wife,  Ollie  P.  Reece,  a  certain  tract  or  parcel 
of  land,  containing  by  estimation  about  one  hundred  acres,  and  bound- 
ed as  follows :  *  *  *  To  have  and  to  hold  as  long  as  she  lives. 
At  her  death  the  said  land  is  to  be  divided  between  my  heirs  at  law." 

This  is  an  explicit  devise  of  land  to  the  widow  during  her  life,  with 
remainder  in  fee  to  the  "heirs  at  law"  of  the  testator.  The  chancellor 
treated  the  remainder  as  vested,  but  the  court  of  chancery  appeals 
was  of  the  opinion  that  it  was  contingent.  We  concur  in  the  latter 
view.  The  remainder  was  contingent,  because  the  testator  obviously 
intended  the  land  to  be  divided  at  the  death  of  his  widow  among  such 
persons  as  should  then  sustain  to  him  the  relation  of  heirs  at  law. 
The  remainder-men  are  to  be  ascertained,  not  at  his  death,  but  at  the 
death  of  his  widow,  the  life  tenant ;  and  they  are  to  be  such  persons  as 
would  at  that  time  be  his  heirs  at  law.  At  his  death,  when  the  will 
took  effect,  those  persons  were  "dubious  and  uncertain."  Therefore 
the  remainder  must  be  contingent.  Bigley  v.  Watson,  98  Tenn.  358, 
359,  39  S.  W.  525,  38  L.  R.  A.  679,  and  authorities  cited. 

In  what  proportion  do  the  remainder-men,  when  ascertained,  take 
the  land  ?  The  chancellor  held  that  they  take  per  stirpes,  according  to 
the  statutes  of  descent;  and  the  court  of  chancery  appeals  held  that 
they  take  per  capita,  share  and  share  alike.  On  this  question  we  con- 
cur in  the  holding  of  the  chancellor.  When  the  testator  directed 
that  the  land  should  be  divided  among  his  heirs  at  law,  he  meant  that 
the  persons  falling  within  the  designation  should  take  as  heirs  at  law 
would  take.  The  phrase  "heirs  at  law"  indicates  who  shall  take,  and 
how  they  shall  take.  "Heirs  at  law"  means  the  same  as  "heirs  gen- 
eral." They  are  the  kindred  by  blood  of  a  deceased  intestate,  who 
inherit  his  land, — those  upon  whom  the  law  of  descent  casts  his  title. 
Such  persons  take  the  land  by  operation  of  that  law,  and  according  to 

«  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  115. 


240  CONSTRUCTION DESCRIPTION  OF  BENEFICIARY 

it.  They  and  their  respective  interests  are  ascertained  and  denned  by 
the  same  law.  The  testator  resided  in  Tennessee,  the  land  devised  is 
located  here,  and  the  will  is  to  be  construed  with  reference  to  our 
laws.  Consequently  the  remainder-men,  designated  in  the  will  as  the 
testator's  heirs  at  law,  must  be  held  to  be  those  persons  who  in  the  ab- 
sence of  the  will  would  inherit  the  land  at  the  death  of  the  life  tenant, 
under  the  laws  of  descent  in  this  state;  and  their  respective  interests 
must  be  determined  at  that  time  by  the  same  laws.  The  testator  did 
not  say,  in  so  many  words,  that  he  intended  those  interests  to  be  de- 
termined by  those  laws.  It  was  not  essential  that  such  an  intention  be 
so  expressed.  It  is  necessarily  inferred,  in  the  absence  of  a  contrary 
direction.  To  entitle  or  require  beneficiaries  described  as  heirs  at  law 
of  a  resident  of  this  state  to  take  his  land,  located  here,  otherwise  than 
in  accordance  with  our  laws  of  descent,  the  variation  therefrom  must 
be  distinctly  authorized  by  the  language  employed.  No  departure  is 
authorized  by  the  language  of  this  will,  and  none  can  be  made. 

By  the  third  clause  of  his  will,  the  testator  bequeathed  to  his  widow 
certain  live  stock  and  other  personal  property,  and  gave  her  a  legacy 
of  $4,000  in  money.  By  the  fourth  and  fifth  clauses,  he  directed  a 
sale  of  all  of  his  other  property,  both  real  and  personal,  and  concluded 
with  the  words,  "and,  when  my  estate  is  wound  up,  I  direct  that  the 
effects  be  divided  among  my  heirs  at  law."  The  residuum  here  dis- 
posed of  amounts  to  about  $15,000,  of  which  $1,100  arose  from  the 
sale  of  land,  and  the  remaining  $13,900  from  the  sale  of  personalty, 
collection  of  debts,  etc. 

The  chancellor  held  that  all  the  heirs  at  law  of  the  testator  were 
entitled  to  the  proceeds  of  the  land  ($1,100),  and  that  his  distributees, 
excluding  grand  nephews  and  nieces,  only  were  entitled  to  the  pro- 
ceeds of  personalty  ($13,900) ;  each  fund  to  be  divided  per  stirpes 
among  those  so  entitled. 

The  court  of  chancery  appeals  rightly  held  that  all  the  heirs  at  law 
were  entitled  to  share  in  the  aggregate  fund  of  $15,000,  and  then  er- 
roneously held  that  it  should  be  divided  per  capita,  and  paid  out  in  34 
equal  shares. 

Undoubtedly,  the  beneficiaries  of  this  provision  take  vested  inter- 
ests, and  are  to  be  ascertained  as  of  the  date  of  the  testator's  death. 
The  same  phrase,  "my  heirs  at  law,"  used  in  the  second  clause,  is  here 
repeated ;  and  it  was  manifestly  intended  to  convey  the  same  meaning 
here  as  there,  with  the  single  exception  that  it  refers  to  persons  oc- 
cupying the  particular  relation  at  different  periods  of  time.  In  the 
former  instance  it  relates  to  those  within  that  designation  at  the  death 
of  the  widow,  and  in  the  latter  instance  it  relates  to  those  answering 
the  description  at  the  testator's  own  death.  In  both  instances  it  in- 
cludes all  persons  who  in  the  absence  of  a  will  would  be  in  that  rela- 
tion to  the  testator  at  the  particular  time;  and  in  both  instances  all 
who  are  included  take  per  stirpes,  according  to  the  statutes  of  descent. 
The  reasons  for  our  holding  as  to  the  manner  or  proportion  in  which 


WHEN   BENEFICIARIES   TAKE   AS   A   CLASS  241 

the  respective  claimants  will  be  entitled  to  share  the  testator's  bounty 
have  been  given  in  our  construction  of  the  second  clause,  and  need 
not  be  repeated.  They  apply  alike  to  both  provisions. 

The  former  provision  relates  alone  to  real  estate,  which  descends 
to  collateral  kindred,  without  limitation  of  representation.  Code,  § 
2421 ;  Mill.  &  V.  Code,  §  3271 ;  Shannon's  Code,  §  4164;  Alexander 
v.  Wallace,  8  Lea,  571.  And  the  latter  provision  relates  mainly  to 
personalty,  in  which  there  is  no  representation  among  collaterals  after 
the  children  of  brothers  and  sisters.  Code,  ,§  2430 ;  Mill.  &  V.  Code, 
§  3279;  Shannon's  Code,  §  4173;  Alexander  v.  Wallace,  8  Lea,  571, 
572.  Yet  there  is  no  indication  that  the  testator  intended  to  refer  the 
respective  provisions  of  his  will  to  those  statutes,  respectively.  On 
the  contrary,  his  use  of  the  words  "heirs  at  law"  in  both  provisions, 
when  strictly  applicable  under  the  former  statute  only,  shows  an  in- 
tention to  conform  both  provisions  to  the  same  rule,  and  to  embrace 
as  beneficiaries  all  persons  included  in  that  designation  at  the  times  in- 
dicated for  their  ascertainment,  respectively ;  the  participation  in  each 
instance  to  be  in  that  proportion  (per  stirpes)  in  which  his  heirs  at  law 
would  take  undevised  land.  Such  was  the  intention  of  the  testator. 
Being  lawful,  that  intention  must  prevail.  Jones  v.  Hunt,  96  Tenn. 
372,  34  S.  W.  693,  and  citations. 

Modify  the  decree  of  the  court  of  chancery  appeals  so  as  to  con- 
form to  this  opinion. 


II.  When  Beneficiaries  Take  as  a  Class  * 


In  re  MURPHY'S  ESTATE. 

(Supreme  Court  of  California,  1909.     157  Cal.  63,  106  Pac.  230.  137  Am.   St. 

Rep.  110.) 

LORIGAN,  J.B  The  will  of  Denis  B.  Murphy  contained,  among  other 
provisions,  the  following  residuary  clause:  "Fourth.  It  is  my  will 
and  desire  that  all  the  rest  of  my  property  both  real  estate  and  per- 
sonal property  shall  go  to,  and  be  equally  divided  among  the  four 
children  of  my  late  sister  Catherine  F.  Flynn,  deceased;  that  is  to 
say :  I  give,  devise  and  bequeath  all  the  rest  of  my  personal  property 
and  all  my  real  estate  of  whatsoever  kind  and  wheresoever  situate, 
share  and  share  alike,  to  Timothy  J.  Flynn,  William  D.  Flynn,  Mary 
Jane  Logan  and  Kate  I.  Prendergast."  The  will  was  admitted  to  pro- 
bate, and  in  due  time  the  executors  thereof  petitioned  for  a  distribu- 
tion of  the  estate.  The  petition  set  forth  the  will  of  deceased,  and  re- 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  f  116. 
o  Part  only  of  the  opinion  is  given. 

DUNM.CAS.  WILLS — 16 


242  CONSTRUCTION DESCRIPTION  OF  BENEFICIARY 

ferring  to  the  clause  thereof  above  quoted  alleged  that  William  D. 
Flynn,  named  therein  as  one  of  the  residuary  legatees  of  the  estate  of 
decedent,  had  died  prior  to  the  death  of  the  testator,  and  then  with 
reference  to  said  clause  in  the  will  it  was  alleged :  "That  the  intention 
of  said  decedent  in  said  will  was  to  devise  and  bequeath  the  residue  of 
his  estate  to  the  said  Timothy  J.  Flynn,  William  D.  Flynn,  Mary  Jane 
Logan  and  Kate  I.  Prendergast  as  a  class,  namely,  as  the  children  of 
his  said  sister,  and  to  those  of  said  class  only  who  should  be  living 
at  the  death  of  the  said  decedent,  and  upon  the  death  of  the  said 
William  D.  Flynn  during  the  life  of  the  said  decedent,  the  said  Tim- 
othy J.  Flynn,  Mary  Jane  Logan,  and  Kate  I.  Prendergast  became  and 
are  the  sole  survivors  of  said  class,  and  are  entitled  to  the  whole  of 
said  residue." 

Certain  nieces  and  nephews  of  the  deceased,  claiming  to  be  among 
his  heirs  at  law,  answered  the  petition  for  distribution  denying  all  the 
foregoing  allegations  as  to  the  intent  of  the  testator  to  devise  the  resi- 
due of  his  estate  to  the  devisees  named  in  said  fourth  clause  as  a  class, 
and  averring  that,  on  the  contrary,  said  William  D.  Flynn,  named  in 
said  will  as  a  devisee,  died  prior  to  the  death  of  the  testator  without 
issue ;  that  as  to  the  portion  of  his  estate  devised  to  said  William  D. 
Flynn  the  testator  died  intestate ;  and  that  they,  with  other  heirs  at 
law  of  the  testator,  were  entitled  to  participate  in  the  distribution 
thereof.  A  hearing  was  had  on  the  petition  and  the  court  made  find- 
ings of  fact  wherein  it  found,  as  alleged  in  the  petition  for  distribu- 
tion, that  the  intention  of  the  decedent  was  to  devise  the  residue  of 
his  estate  to  the  devisees  named  in  said  fourth  clause  of  his  will  as  a 
class,  namely,  to  the  children  of  his  said  sister  and  to  those  of  said 
class  who  would  be  living  at  the  death  of  said  decedent.  In  accordance 
with  this  finding,  the  court  distributed  the  property  to  the  survivors  of 
those  mentioned  in  the  residuary  clause  of  the  will,  namely,  Timothy 
J.  Flynn,  Mary  J.  Hyde  (formerly  Logan),  and  Kate  I.  Prendergast, 
share  and  share  alike. 

This  appeal  is  by  those  heirs  at  law  of  decedent — the  nieces  and 
nephews — who  contested  the  distribution  of  the  estate  to  the  devisees 
named  in  the  residuary  clause  as  a  class,  and  is  taken  from  the  decree 
of  distribution  accompanied  by  a  bill  of  exceptions. 

It  must  be  conceded  upon  this  appeal  that  under  the  testamentary 
clause  in  question  the  devise  to  William  D.  Flynn  lapsed  upon  his 
death  without  leaving  lineal  descendants,  betore  the  testator  (Civ. 
Code,  §  1343),  and  that  as  to  the  portion  of  the  estate  devised  to  him 
the  testator  died  intestate,  unless  from  the  clause  in  the  will  creating 
the  devise  in  which  he  was  to  participate,  considered  by  itself,  it  is 
apparent  that  the  testator  intended  the  devise  of  the  residue  of  his 
estate  to  go  to  the  children  of  his  sister  Catherine  as  a  class,  or  that 
such  intention  appears  from  extraneous  evidence  properly  admissible 
to  disclose  it.  While  the  lower  court  reached  the  conclusion  that  the 
devise  in  question  was  to  a  class  consisting  of  the  children  of  the  de- 


WHEN   BENEFICIARIES   TAKE   AS   A   CLASS  243 

ceased  sister  of  testator  who  might  survive  him,  we  are  of  the  opinion, 
in  the  light  of  the  established  rules  of  construction  and  authorities, 
that  this  conclusion  was  not  justified  either  from  the  express  terms 
of  the  devise  itself  or  aided  by  extrinsic  evidence. 

It  is  declared  by  the  Civil  Code,  ,§  683,  that  a  joint  interest  created 
by  a  will  exists  only  "when  expressly  declared  in  the  will  to  be  a  joint 
tenancy,"  and  by  section  685  of  the  same  Code  it  is  declared  that  every 
interest  created  in  favor  of  several  persons  (except  acquired  under 
certain  conditions  not  involved  here)  is  an  interest  in  common  unless 
declared  in  its  creation  to  be  a  joint  interest.  It  is  quite  apparent 
from  an  examination  of  the  testamentary  clause  in  question  that  this 
devise  does  not  expressly  declare  a  joint  tenancy  with  its  accompany- 
ing right  of  survivorship  in  the  devisees  named  therein,  and,  unless 
there  is  some  rule  capable  of  application  so  as  to  prevent  it,  the  inter- 
est which  each  devisee  took  under  the  devise  was  an  interest  in  com- 
mon. -  ' 

It  is  not  contended  by  the  respondents  that  the  clause  does  create 
any  joint  tenancy,  nor  do  they  predicate  their  right  to  take  the  whole 
devise  as  survivors  by  reason  of  any  expressly  created  joint  tenancy. 
They  base  their  claim  solely  on  the  ground  that  the  devise,  while  not 
in  terms  creating  a  joint  tenancy,  still  is  a  devise  to  a  class — the  chil- 
dren of  the  deceased  sister  of  testator — and  that  under  a  well-recog- 
nized rule  of  law,  where  a  devise  is  made  to  a  class,  the  death  of  one 
of  the  class  prior  to  the  death  of  the  testator  does  not  have  the  effect 
of  causing  the  legacy  to  lapse,  but  those  of  the  class  who  survive  the 
testator  take  the  whole  devise.  The  rule  contended  for  by  respond- 
ents is  correct,  but  we  cannot  agree  with  them,  or  the  trial  court,  in 
the  conclusion  that  either  the  terms  of  the  devise  disclose  an  inten- 
tion on  the  part  of  the  testator  to  devise  to  a  class,  or  that,  accepting 
the  extraneous  testimony  admitted  as  bearing  on  his  intention,  it  dis- 
closes any  such  intention.  As  to  a  gift  to  a  class,  the  rule  is  stated  as 
follows :  "In  legal  contemplation  a  gift  to  a  class  is  a  gift  of  an  ag- 
gregate sum  to  a  body  of  persons  uncertain  in  number  at  the  time  of 
the  gift,  to  be  ascertained  at  a  future  time,  who  are  all  to  take  in 
equal  or  some  other  definite  proportions,  the  share  of  each  being  de- 
pendent for  its  amount  upon  the  ultimate  number."  Jarman  on  Wills 
(6th  Ed.)  §  232;  Matter  of  Kimberly,  150  N.  Y.  90,  44  N.  E.  945,; 
Matter  of  Russell,  168  N.  Y.  169,  61  N.  E.  166;  Kent  v.  Kent,  106 
Va.  199,  55  S.  E.  564. 

Tested  under  this  rule,  there  is  nothing  in  the  devise  which  would 
indicate  that  the  intention  of  the  testator  was  that  the  devisees  should 
take  as  a  class,  or  in  any  other  way  than  as  individuals,  and  under 
our  Code  provision  as  tenants  in  common.  There  is  nothing  on  the 
face  of  the  devise  indicating  any  uncertainty  in  the  number  of  per- 
sons who  were  to  take  the  property,  or  that  they  were  to  be  ascer- 
tained at  a  future  time,  or  that  the  share  of  the  residuary  estate  which 
the  devisees  were  ultimately  to  have  was  to  be  determined  as  to  the 


244  CONSTRUCTION DESCRIPTION  OF  BENEFICIARY 

\ 

amount  by  the  number  of  those  who  would  survive  the  testator.  All 
the  persons  who  are  to  take  were  specifically  named  and  the  share  of 
each  was  designated.  In  fact,  it  is  not  only  quite  apparent  that  under 
the  rule  relied  on  this  devise  cannot  be  said  to  contain  any  of  the  ele- 
ments which  should  characterize  a  gift  to  a  class,  but  the  plain  impres- 
sion which  one  would  receive  by  reading  the  clause  is  that  the  tes- 
tator intended  to  give  to  each  individual  an  equal  portion  of  his  es- 
tate. It  is  true  that  the  testator  uses  language  in  the  clause  of  his 
will  which  would,  if  it  stood  alone,  amount  to  a  devise  to  a  class.  This 
would  be  the  result  if  the  devise  had  been  to  "the  four  children  of  my 
late  sister  Catherine"  without  further  words.  But  here  the  terms  of 
the  bequest — the  designation  of  the  number  of  the  children,  followed 
by  a  repeated  and  express  devise  to  them  by  name  and  in  an  equal 
share — cannot  be  ignored  so  as  to  make  the  other  words  in  the  will 
constitute  a  class. 

And  in  determining  whether  a  devise  is  to  a  class  or  to  individuals 
great  importance  is  attached  in  the  solution  of  the  question  to  the  fact 
that  the  gift  is  to  the  devisees  nominatim  and  that  the  particular  share 
they  shall  each  receive  is  mentioned,  and,  when  this  appears,  the  be- 
quest is  held  to  constitute  a  gift  and  devise  individually  as  tenants  in 
common,  and  not  as  a  devise  to  a  class.  Savage  v.  Burnham,  17  N. 
Y.  561 ;  Hornberger  v.  Miller,  28  App.  Div.  199,  50  N.  Y.  Supp.  1085  ; 
Rockwell  v.  Bradshaw,  67  Conn.  8,  34  Atl.  758.  But,  assuming,  how- 
ever, that  the  language  used  in  the  clause  in  question  is  capable  of  two 
different  legal  meanings  resulting  from  the  testator  devising  his  estate 
to  the  four  children  of  his  late  sister,  followed  by  other  words  of  ex- 
press devise  to  each  of  the  children  by  name  and  in  equal  proportions, 
still  this  mention  of  them  by  name  and  a  devise  to  them  in  equal  shares 
will  control  the  description  of  them  as  children  of  his  deceased  sister. 
If  words,  which,  standing  alone,  would  be  effectual  to  create  a  class, 
are  followed  by  equally  operative  words  of  devise  to  devisees  by  name 
and  in  definite  proportions,  the  law  infers  from  the  designation  by 
name  and  mention  of  the  share  each  is  to  take  that  the  devisees  are  to 
take  individually  and  as  tenants  in  common,  and  that  the  descriptive 
portion  of  the  clause  (children  of  a  deceased  sister)  is  intended  merely 
as  matter  of  identification.  Hoppock  v.  Tucker,  59  N.  Y.  202 ;  Horn- 
berger v.  Miller,  supra.  *  *  *  Reversed. 


TIME   OF  ASCERTAINING   MEMBERS   OF  A  CLASS  245 

III.  Time  of  Ascertaining  Members  of  a  Class 
1.  IMMEDIATE  GIFTS  ' 


ROWLAND  v.  SLADE. 
(Supreme  Judicial  Court  of  Massachusetts,  1892.    155  Mass.  415,  29  N.  E.  631.) 

Bill  by  Elihu  Rowland  and  Sarah  Slade,  executors  of  Frederick 
Slade,  deceased,  against  Benjamin  W.  Slade  and  others,  for  the.  con- 
struction of  the  8th,  9th,  and  15th  clauses  of  said  Frederick  Slade's 
will,  which  read  as  follows :  "(8)  I  give  to  all  my  first  cousins  on  my 
father's  side  the  homestead  farm  of  my  father,  equally  between  them, 
and  six  hundred  dollars  to  each  of  them.  (9)  I  give  to  my  first  cousins 
on  my  mother's  side  six  hundred  dollars  to  each  of  them.  *  *  * 
(15)  I  give  and  bequeath  the  rest  and  residue  of  my  estate  equally  be- 
tween all  my  first  cousins." 

The  bill  contained  the  following  allegations :  "(7)  The  plaintiffs  are 
embarrassed  with  conflicting  claims  in  regard  to  the  administration  of 
the  trust  imposed  upon  them  by  said  will,  as  follows :  (a)  The  persons 
named  in  clause  3  of  this  bill,  constituting  the  class  of  first  cousins  of 
the  testator,  living  at  the  time  of  his  death,  claim  that,  under  the  true 
construction  of  said  will,  they  are  the  persons,  and  the  only  persons, 
entitled  as  devisees  and  legatees  under  the  8th  and  9th  and  15th  clauses 
of  said  will,  respectively,  as  'all  my  first  cousins  on  my  father's  side,' 
'my  first  cousins  on  my  mother's  side,'  'all  my  first  cousins ;'  and  they 
have  made  demand  upon  the  plaintiffs  to  distribute  said  estate  in  ac- 
cordance with  such  construction,  (b)  The  persons  named  in  clause  4 
of  this  bill,  being  the  issue  of  all  those  persons  who,  in  addition  to  the 
persons  named  in  clause  3  of  this  bill,  were  the  first  cousins  of  the 
testator  living  on  March  14,  1889,  the  time  of  the  execution  of  said 
will,  claim  that,  under  the  true  construction  of  said  will,  they,  taking 
by  right  of  representation,  together  with  the  persons  named  in  clause 
3  of  this  bill,  are  the  persons,  and  the  only  persons,  entitled  as  devisees 
and  legatees  under  said  8th,  9th,  and  15th  clauses  of  said  will,  respec- 
tively, as  'all  my  first  cousins  on  my  father's  side,'  'my  first  cousins  on 
my  mother's  side,'  and  'all  my  first  cousins ;'  and  they  have  made  de- 
mand upon  the  plaintiffs  to  distribute  said  estate  in  accordance  with 
such  construction,  (c)  The  persons  named  in  clause  4  of  this  bill,  being 
the  issue  of  all  those  persons  who  died  leaving  issue,  who,  in  addition 
to  the  perons  named  in  clauses  3  and  4,  were  the  first  cousins  of  the 
testator  at  any  time  prior  to  the  execution  of  said  will,  claim  that,  un- 
der the  true  construction  of  said  will,  they,  taking  by  right  of  represen- 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  119,  120. 


246  CONSTRUCTION DESCRIPTION   OF   BENEFICIARY 

tation,  together  with  the  persons  named  in  clause  4  of  this  bill,  also 
taking  by  right  of  representation,  and  also  together  with  the  persons 
named  in  clause  3  of  this  bill,  are  the  persons,  and  all  the  persons,  en- 
titled as  devisees  and  legatees  under  said  8th,  9th,  and  15th  clauses  of 
said  will,  respectively,  as  'all  my  first  cousins  on  my  father's  side,'  'my 
first  cousins  on  my  mother's  side,'  and  'all  my  first  cousins ;'  and  they 
have  made  demand  upon  the  plaintiffs  to  distribute  said  estate  in  ac- 
cordance with  such  construction." 

The  case  was  reserved  for  the  determination  of  the  full  court. 

MORTON,  J.  It  is  clear  that  the  issue  of  the  first  cousins  who  died 
before  the  making  of  the  will  cannot  take  under  it.  There  is  nothing  in 
the  will  to  indicate  a  purpose  on  the  part  of  the  testator  that  they  should 
share  his  bounty ;  and,  in  the  absence  of  such  an  intention,  it  is  plain, 
upon  the  authorities,  that  they  are  not  to  be  regarded  as  beneficiaries. 
Merriam  v.  Simonds,  121  Mass.  203 ;  Groves  v.  Musther,  43  Ch.  Div. 
5.69 ;  In  re  Hotchkiss,  L.  R.  8  Eq.  643 ;  Habergham  v.  Ridehalgh,  L. 
R.  9  Eq.  295 ;  In  re  Webster's  Estate,  23  Ch.  Div.  737 ;  In  re  Chinery, 
39  Ch.  Div.  614.  At  the  time  when  the  will  was  made,  they  did  not 
fall  within  the  description  of  first  cousins ;  and,  without  something  to 
show  that  such  was  to  be  the  case,  they  could  not  take  as  substitutes 
for  or  in  the  place  of  the  first  cousins  who  were  dead,  because  these 
could  not  themselves  have  taken  as  members  of  the  original  class.  In 
re  Webster's  Estate,  supra. 

The  more  difficult  question  is  whether  the  issue  of  the  first  cousins 
who  died  between  the  making  of  the  will  and  the  death  of  the  testator 
can  take.  The  will  is  singularly  barren  of  anything  that  tends  to  throw 
light  on  the  point.  In  many  of  the  cases  referred  to  by  counsel,  it  is 
evident,  either  from  the  fact  that  the  testator  provided  by  a  gift  over 
for  the  death  of  any  of  them  in  his  life-time,  or  from  some  other  cir- 
cumstance, that  he  had  in  mind  persons  living  at  the  time  of  the  mak- 
ing of  his  will  as  constituting  the  class  which  was  to  take.  But  nothing 
of  the  kind  appears  here.  The  provisions  are:  "(8)  I  give  to  all  my 
first  cousins  on  my  father's  side.  *  *  *  (9)  I  give  to  my  first 
cousins  on  my  mother's  side.  *  *  *  (15)  I  give  and  bequeath  the 
rest  and  residue  of  my  estate  equally  between  all  my  first  cousins." 
There  is  nothing  to  indicate  whether  the  testator  had  in  mind  the  first 
cousins  who  were  living  at  the  time  of  making  the  will,  or  those  who 
might  be  living  at  the  time  of  his  death.  The  word  "all"  gives  us  no 
help.  Whichever  construction  is  adopted,  to  say  "my  first  cousins" 
would  be  the  same  thing  as  saying  "all  my  first  cousins."  We  are 
forced  to  resort,  then,  to  general  rules. 

Speaking  generally,  when  a  testamentary  gift  is  made  to  a  class  of 
persons  to  take  effect  in  possession  immediately,  those  who  constitute 
the  class  at  the  death  of  the  testator  when  the  will  becomes  operative 
take,  unless  a  different  intent  appears  from  the  will,  or  from  such  ex- 
trinsic circumstances  as  may  be  properly  taken  into  account.  Wor- 
cester v.  Worcester,  101  Mass.  132;  Merriam  v.  Simonds,  121  Mass. 


TIME   OF   ASCERTAINING   MEMBERS   OF   A   CLASS  247 

202;  Campbell  v.  Rawdon,  18  N.  Y.  412;  Redf.  Wills,  pt.  2,  §  44,  cl.  2; 
Baldwin  v.  Rogers,  3  DeG.  M.  &  G.  649.  We  think  this  rule  must  ap- 
ply. Its  effect,  however,  will  be  modified  by  Pub.  St.  c.  127,  §  23,  which 
provides  that  where  a  legacy  is  given  to  a  child  or  other  relative  of  the 
testator,  and  such  child  or  other  relative  dies  before  the  testator,  leav- 
ing issue  surviving  the  testator,  such  issue  shall  take  the  legacy,  unless 
a  different  intention  is  manifested  by  the  will.  It  does  not  matter,  as 
has  been  held,  that  "such  child  or  other  relative"  is  treated  as  one  of  a 
class  by  the  testator.  The  issue  will  still  take  the  legacy  which  the  de- 
ceased person  would  have  taken,  had  he  survived  the  testator.  Stock- 
bridge,  Petitioner,  145  Mass.  517,  14  N.  E.  928;  Moore  v.  Weaver,  16 
Gray,  305 ;  Moore  v.  Dimond,  5  R.  I.  121. 

The  result  is,  therefore,  that  the  persons  described  in  clauses  a  and 
b  of  the  bill  of  complaint  will  take.    Decree  accordingly. 


2.  POSTPONED  GIFTS  T 

INGE  v.  JONES. 
(Supreme  Court  of  Alabama,  1896.    109  Ala.  175,  19  South.  435.) 

Action  by  Georgia  and  Herman  Johnston,  by  their  guardian,  James 
M.  Jones,  against  Nona  Inge,  for  partition.  From  a  judgment  for 
plaintiffs,  defendant  appeals.  Affirmed. 

The  bill  of  complaint  shows  that  one  Thomas  M.  Johnston  died  a 
resident  citizen  of  Hale  county,  Ala.,  in  the  year  1869,  leaving  a  last 
will  and  testament,  which  was  duly  probated.  In  the  twenty-fourth 
clause  of  the  will  the  testator  devised  the  real  estate,  the  subject  of  this 
litigation,  to  his  son,  George  M.  Jones,  for  life,  with  remainder  to  the 
children  of  said  George  M.  Jones  living  at  his  death.  The  language  of 
the  devise  is  copied  in  the  opinion.  George  M.  Jones  died  on  Septem- 
ber 1,  1893,  leaving  three  living  children,  Nona  Inge  being  of  age,  and 
the  other  two,  Georgia  Johnston  and  Herman  Johnston,  being  minors. 
The  two  minor  children,  through  their  guardian,  filed  the  bill  in  the 
present  case  against  Nona  Inge,  seeking  a  partition  of  the  real  estate 
devised  by  Thomas  M.  Johnston  to  the  father  of  the  complainants  and 
the  defendant  during  his  life,  the  contention  of  complainants  being  that 
all  three  of  the  children  of  George  M.  Johnston  owned  the  lands  as 
tenants  in  common. 

The  respondent  demurred  to  the  bill  on  the  following  grounds :  (1) 
That  it  fails  to  allege  that  the  complainants  were  living  at  the  time  the 
will  of  Thomas  M.  Johnston  was  made,  or  at  the  time  of  his  death; 
and  (2)  that  the  bill  fails  to  show  that  the  complainants  have  any  inter- 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  119,  120. 


248  CONSTRUCTION DESCRIPTION  OF  BENEFICIARY 

est  in  the  real  estate  which  is  the  subject  of  the  suit.  The  other  facts 
of  the  case  are  sufficiently  stated  in  the  opinion.  On  the  submission  of 
the  cause  on  these  demurrers,  the  chancellor  was  of  the  opinion  that 
they  were  not  well  taken,  and  rendered  a  decree  overruling  them.  The 
present  appeal  is  prosecuted  by  the  respondent  from  said  decree,  and 
the  same  is  here  assigned  as  error. 

COWMAN,  J.  The  bill  was  filed  by  the  guardian  of  Georgia  Johns- 
ton and  Herman  Johnston,  the  purpose  of  which  was  to  obtain  a  decree 
for  partition  of  certain  lands,  definitely  described  in  the  bill.  Nona 
Inge  was  made  respondent.  The  averments  show  that  the  complain- 
ants and  respondent  are  the  only  children  of  George  M.  Johnston,  de- 
ceased, and  complainants'  contention  is  that  they  are  tenants  in  common 
with  respondent  under  a  devise  made  by  Thomas  M.  Johnston,  their 
grandfather.  The  interest  of  each  party  is  sufficiently  manifest  from 
the  facts  stated.  McQueen  v.  Turner,  91  Ala.  273,  S  South.  863. 

There  is  but  one  question  of  importance  raised  by  the  demurrer  to 
the  bill,  and  that  involves  the  construction  of  the  devise  to  George  M. 
Johnston.  The  testator  devised  to  his  son,  George  M.  Johnston,  "the 
tract  of  land  recently  purchased  by  him  from  the  estate  and  widow  of 
James  I.  Walton,  lying  in  Hale  county,  Alabama,  containing  1,476 
acres,  together  with  the  improvements  thereon  during  the  natural  life 
of  the  said  George  M.  Johnston,  and  then  it  is  to  go  to  his  living  chil- 
dren." It  appears  from  the  bill  that  only  Nona  Inge,  one  of  the  chil- 
dren of  George  M.  Johnston,  was  living  at  the  date  of  the  will  or  death 
of  testator,  and  that  complainants,  who  were  also  children  of  George 
M.  Johnston,  were  born  subsequent  to  such  period.  The  respondent, 
Nona  Inge,  claims  that  by  the  devise  she  is  the  sole  owner  of  the  land, 
and  the  question  is  raised  by  the  demurrer  to  the  bill.  Much  has  been 
written  by  learned  judges  and  able  text  writers,  in  construing  devises 
over  after  a  life  estate  or  particular  estate  has  been  carved  out,  in  de- 
termining whether  the  estate  over  is  vested  or  contingent;  and,  when 
the  remainder  is  to  the  children  of  the  life  tenant,  whether  the  estate 
over  is  restricted  to  the  children  living  at  the  death  of  the  testator. 
However  variant  the  conclusions  reached,  all  authorities  agree  that  a 
testator  of  sound,  disposing  mind  and  memory  can  make  any  disposi- 
tion of  his  estate  by  will  that  he  may  prefer,  not  inconsistent  with  law 
or  public  policy.  The  intention  of  the  testator  must  prevail,  and  rules 
of  construction  are  intended  to  ascertain  this  intention. 

The  entire  will  is  not  in  the  record.  We  have  only  that  part  which 
embraces  the  devise  under  consideration.  It  frequently  happens  that  a 
particular  portion  or  phrase  of  a  will,  standing  alone,  is  indefinite  and 
uncertain,  but,  considered  in  connection  with  other  portions  of  the 
same  will,  becomes  easily  understood.  A  testator  has  the  right  to  se- 
lect one  child  or  one  grandchild  to  the  exclusion  of  others,  equally  en- 
titled to  his  affection  and  bounty,  as  the  subject  of  his  gifts.  If  such 
should  be  the  intention,  we  would  expect  the  preference  to  be  mani- 
fested by  the  use  of  some  specific  or  definite  description  or  nomination, 


TIME   OF   ASCERTAINING   MEMBERS   OF   A   CLASS  249 

or  by  words  of  exclusion,  as  to  those  not  intended  to  be  included  in  the 
gift.  Unless  it  satisfactorily  appears  from  the  will  that  the  testator  in- 
tended to  prefer  one  to  the  exclusion  of  others,  all  of  whom  stand  in 
the  same  degree  of  relationship  to  him,  and  are  equally  entitled  to  his 
bounty,  the  court  should  solve  the  contention  in  favor  of  all  alike.  It  is 
certain  that  George  M.  Johnston  was  to  take  only  a  life  estate  "and 
then  it  is  to  go  to  his  living  children."  If  at  the  date  of  the  will  George 
M.  Johnston  had  no  children,  by  no  process  of  reason  could  we  pre- 
sume that  he  referred  to  any  particular  child.  If  Nona  Inge,  the  re- 
spondent, was  then  living,  and  there  were  no  other  children,  and  the 
testator  had  intended  to  limit  or  restrict  the  remainder  over  to  her,  it 
is  reasonable  to  presume  that  he  would  have  mentioned  her  by  name, 
or  described  her  as  the  child  of  George  M.  Johnston.  The  testator  used 
the  term  "children,"  providing  that,  after  the  life  estate  had  fallen  in, 
the  property  should  "then  go  to  the  living  children."  Evidently  the 
testator  did  not  intend  to  prefer  one  of  the  children  of  his  son  to  other 
children,  but  intended  that  the  property  should  go  to  all  the  children 
alike  of  his  son  who  should  be  living  at  the  termination  of  the  life  es- 
tate. 

Complainants  are  within  the  class  of  those  embraced  within  the  pro- 
vision of  the  devise.  Whether  Nona  took  a  contingent  remainder,  now 
converted  into  an  executory  devise  by  statute,  or  a  vested  remainder, 
the  result  would  be  the  same.  If  Nona  Inge  took  a  vested  remainder 
in  the  whole  at  the  death  of  the  testator,  the  estate  would  open,  and  let 
in  after-born  children  of  George  M.  Johnston,  the  life  tenant.  If  the 
devise  was  executory,  or  a  contingent  remainder,  complainants  and 
respondent  being  alive  at  the  time  of  the  death  of  the  life  tenant,  all 
would  take  under  the  devise.  We  would  be  drawn  to  this  conclusion 
under  the  influence  of  the  cardinal  rule  that  the  intent  of  the  testator, 
if  possible,  should  be  ascertained,  and,  when  ascertained,  must  domi- 
nate the  conclusion.  Many  authorities  bear  us  out  in  our  construction 
of  the  devise.  Banks  v.  Jones,  50  Ala.  480 ;  2  Jarm.  Wills,  707 ;  3  Jarm. 
Wills,  589,  and  authorities ;  Roundtree  v.  Roundtree,  26  S.  C.  450,  2  S. 
E.  474.  Affirmed. 

HARALSON,  J.,  not  sitting. 


250  CONSTRUCTION NATURE  AND  DURATION  OF  INTERESTS 


CONSTRUCTION  (Continued)— NATURE  AND  DURATION 

OF  INTERESTS 

I.  Estates  of  Inheritance 
1.  FEE  SiMPLE1 


GOOD  v.  FICHTHORN. 

(Supreme  Court  of  Pennsylvania,  1891.     144  Pa.  287,  22  Atl.  1032,  27  Am. 

St.  Rep.  630.) 

Ejectment  by  Benjamin  Good  and  others,  heirs  of  Solomon  Good, 
deceased,  against  Cyrus  J.  Miller,  claiming  under  the  heirs  of  Isabelle 
Good,  deceased,  the  wife  of  said  Solomon  Good,  and  against  said  heirs. 
The  court  directed  a  verdict  for  plaintiffs.  Defendants  appeal.  Re- 
versed. 

MITCHELL,  J.  The  will  of  Solomon  Good  gave  his  widow  in  the 
outset  a  fee-simple  in  the  land  in  suit.  This  would  be  clear  enough 
from  the  devise  to  her,  "as  her  absolute  property,"  in  the  fourth  clause ; 
but,  as  if  to  avoid  any  possible  question  on  that  point,  the  same  clause 
vests  her  with  "all  the  powers  and  rights"  that  testator  himself  pos- 
sessed while  living,  and  subsequent  clauses  declare  she  shall  have  the 
power  to  sell,  and  that  the  proceeds  shall  be  her  absolute  property. 
Then  follows  the  clause  upon  which  the  present  contention  arises : 
"Should  my  wife  during  her  life-time  not  consume  or  use  all  my  prop- 
erty, real  and  personal,  for  her  proper  support,  then  I  do  hereby  enjoin 
and  direct  her  to  make  and  publish  her  last  will  and  testament,  that 
after  her  decease  all  the  rest  and  residue  not  consumed,  used,  or  sold 
by  her  shall  be  divided,"  etc.  Did  this  clause  reduce  the  fee  previously 
given  to  a  life-estate  as  to  the  unconsumed  residue?  That  such  effect 
may  be  produced  is  admitted,  but  the  presumption  is  against  it.  The 
rule  is  well  expressed  by  Strong,  J.,  in  Sheets'  Estate,  52  Pa.  257,  thus : 
"If  a  testator  give  an  estate  of  inheritance,  *  *  *  and  in  subse- 
quent passages  unequivocally  shows  that  he  means  the  devisee  to  take 
a  lesser  interest  only,  the  prior  gift  is  restricted  accordingly." 

As  it  must  unequivocally  appear  that  the  testator  meant  to  limit  the 
estate,  it  has  been  uniformly  held  that  no  merely  precatory  words  will 
be  sufficient.  Thus  in  Pennock's  Estate,  20  Pa.  268,  59  Am.  Dec.  718, 
Lowrie,  J.,  speaking  of  the  English  rule,  which  was  held  not  to  be 
adopted  here,  and  to  be  fading  away  even  in  England,  said :  "If  it  can 
be  implied  from  the  words  that  a  discretion  is  left  to  withdraw  any 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  122,  123. 


ESTATES    OF   INHERITANCE  251 

part  of  the  subject  of  the  devise  from  the  object  of  the  wish  or  request, 
or  to  apply  it  to  the  use  of  the  devisee,  no  trust  is  created ;"  and  again : 
"If  she  could  thus  use  (consume  or  spend)  it  she  was  no  trustee  in  the 
eye  of  the  law."  The  general  rule  was  accordingly  held  in  that  case  to 
be  that  words  expressive  of  desire  or  recommendation  will  not  convert 
a  devise  into  a  trust,  unless  it  appear  that  the  testator  intended  not  to 
commit  the  estate  to  the  devisee,  or  its  ultimate  disposal  to  his  discre- 
tion. And  in  Burt  v.  Herron,  66  Pa.  400,  it  was  held  that,  while  words 
of  request  in  a  will  are  commands  as  to  the  direct  disposition  of  the 
estate,  yet  they  are  not  so  as  to  limitations  on  previously  granted  es- 
tates, unless  it  appear  affirmatively  that  they  were  intended  to  be  im- 
perative. "All  expressions,"  says  Sharswood,  J.,  "indicative  of  a  wish 
or  will,  are  commands.  It  is  different  when,  having  made  a  disposition, 
he  expresses  a  desire  that  the  devisee  should  make  a  certain  use  of  his 
bounty."  See,  also,  Hopkins  v.  Glunt,  111  Pa.  287,  2  Atl.  183. 

The  true  test  of  the  effect  of  language  apparently  at  variance  with 
other  parts  of  the  devise,  is  whether  the  intent  is  to  give  a  smaller 
estate  than  the  meaning  of  the  words  of  the  gift  standing  alone  would 
import,  or  to  impose  restraints  upon  the  estate  given.  The  former  is 
always  lawful  and  effective,  the  latter  rarely,  if  ever ;  the  first,  because 
the  testator's  intention  is  the  governing  consideration  in  the  construc- 
tion and  carrying  out  of  a  will ;  the  second,  because  even  a  clear  in- 
tention of  the  testator  cannot  be  permitted  to  contravene  the  settled 
rules  of  law  by  depriving  any  estate  of  its  essential  legal  attributes. 
Applying  this  principle  to  the  present  case,  it  is  clear,  as  already  said, 
that  the  testator  gave  a  fee-simple  absolute  to  his  widow,  repeated  and 
reiterated,  as  if  he  wished  to  put  it  beyond  all  question.  But  it  is  also 
clear  that  he  still  thought  it  necessary,  or  at  least  permissible,  for  him 
to  prescribe  how  it  should  be  used.  Therefore  he  gives  her  all  the 
rights  and  powers  over  it  that  he  had  while  living,  and,  in  addition, 
specifies  the  right  to  sell  and  convey,  to  make  title,  to  use  the  proceeds, 
and,  lastly,  as  an  adjunct  to  the  will,  whose  making  he  enjoins,  "the 
power  and.  authority"  to  appoint  one  or  two  executors,  as  she  may  deem 
proper.  It  is  true  that  the  words  he  uses  in  regard  to  the  making  of 
her  will — "enjoin  and  direct" — are  in  their  natural  meaning  mandatory 
and  imperative;  but,  coming,  as  they  do,  at  the  end,  and  in  connection 
with  the  express  enumeration  of  useless  and  superfluous  powers,  they 
indicate  an  intent  to  grant  or  withhold  incidents  of  the  estate  already 
given.  As  said  by  Mercur,  C.  J.,  in  the  analogous  case  of  Bowlby  v. 
Thunder,  105  Pa.  173 :  "Not  a  word  herein  indicates  an  intention  to 
qualify  or  change  the  absolute  devise  which  he  had  made  to  her." 

The  language  is  no  stronger  than  that  in  Jauretche  v.  Proctor,  48 
Pa.  466,  that  "she  is  not  to  divest  herself  of  what  I  may  leave  her,  until 
after  her  death ;"  and  "at  the  death  of  my  wife,  what  I  may  have  left 
her — that  is  to  say,  the  residue — is  to  be  divided,"  etc.  "The  paramount 
thought,"  says  Chief  Justice  Woodward,  "was  to  make  his  wife  abso- 
lute owner  of  his  estate,  and  he  expressed  this  thought  by  sufficient 


252  CONSTRUCTION NATURE  AND  DURATION   OF  INTERESTS 

words.  But  the  particular  thought  was  to  take  away  from  her  one  of 
the  incidents  of  absolute  ownership;  in  other  words,  that  he  would 
grant  a  fee  with  power  of  testamentary  disposition,  but  would  with- 
hold the  power  of  alienation."  And  this  endeavor  to  restrict  the  use  of 
the  property  was  held  inoperative.  So  here  the  testator  gave  an  abso- 
lute fee,  with  express  powers  to  consume  or  convey.  He  did  not  devise 
the  unconsumed  residue  himself,  but  desired  his  wife  to  do  so.  He  put 
his  request  in  strong  words,  ordinarily  importing  command,  but  so  used 
as  to  indicate  only  an  intent  not  to  reduce  the  estate  previously  given, 
but  to  control  one  of  its  incidents.  Where  that  is  the  intent,  no  words, 
however  strong,  amount  to  more  than  a  request,  which  cannot  be  en- 
forced by  law.  Judgment  reversed. 


2.  FEE;  TAII*  2 


DOTY  v.  TELLER. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1892.    54  N.  J.  Law,  163,  23  Atl. 
944,  33  Am.  St.  Rep.  670.) 

Suit  by  Asher  Teller,  Phcebe  J.  Decker,  and  Lewis  Teller  against 
John  H.  Doty  to  recover  land.  Judgment  for  plaintiffs.  Defendant 
brings  error.  Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by  Mc- 
Gill,  Ch. : 

Daniel  Wade  died  on  the  9th  of  September,  1821,  seised  of  the  land 
in  Union  county  for  which  ejectment  is  here  brought.  On  the  3d  of 
November,  1818,  while  seised  of  that  land,  he  made  his  last  will,  which 
was  duly  admitted  to  probate  in  December,  1821,  and,  in  the  operative 
parts  thereof,  is  in  the  following  language : 

"First.  It  is  my  will,  and  I  do  order,  that  all  my  just  debts  and  fu- 
neral expenses  be  fully  paid  and  satisfied  as  soon  as  conveniently  can 
be  after  my  decease.  Item :  I  give  and  bequeath  unto  my  beloved  wife, 
Abigal  Wade,  the  use  of  all  my  estate,  both  real  and  personal,  during 
her  natural  life,  (except  so  much  of  my  personal  estate  as  may  be 
wanted  to  pay  my  just  debts  and  funeral  expenses.)  And,  further,  I 
dp  hereby  authorize  and  empower  my  said  wife,  Abigal,  that  if  in  the 
course  of  divine  providence  her  daughter,  Fanny  Teller,  now  the  wife 
of  Samuel  Teller,  should  be  reduced  to  indigent  circumstances,  to  re- 
lieve her  necessities  in  that  way  which  shall  be  most  expedient  and  least 
injurious  to  my  estate.  Item:  After  the  decease  of  my  wife,  the  said 
Abigal  Wade,  I  give  and  devise  unto  Daniel  Wade  Teller,  the  son  of 
Samuel  and  Fanny  Teller,  all  my  lands,  tenements,  and  real  estate 

2  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §§  122,  123. 


ESTATES   OF   INHERITANCE  253 

whatsoever  and  wheresoever,  to  him  and  to  his  heirs,  entail  the  same, 
forever.  Lastly.  I  appoint  my  said  wife,  Abigal  Wade  executrix,  and 
my  trusted  friend,  Luke  Tucker,  executor,  of  this  my  last  will,  and 
testament." 

The  testator's  wife,  Abigal  Wade,  died  on  the  12th  of  December, 
1825.  Daniel  Wade  Teller  was  her  grandson,  not  of  the  blood  of  the 
testator.  Upon  the  death  of  Abigal  Wade  while  he  was  yet  a  minor, 
Daniel  Wade  Teller  entered  into  possession  of  the  lands  devised  to  him, 
and  in  March,  1831,  when  of  full  age,  executed  a  deed  of  the  locus  in 
quo  to  one  John  Smith,  which  purported  to  convey  the  property  in  fee, 
and  contained  covenants  of  seisin  and  warranty.  Smith  went  into  pos- 
session under  his  deed,  and,  by  like  instrument  in  November,  1846,  con- 
veyed the  property  to  Elias  Crane,  who,  after  taking  possession  by  a 
similar  deed,  dated  in  January,  1853,  conveyed  the  property  to  Samuel 
H.  Doty,  the  father  of  the  plaintiff  in  error,  who  died^ntestate  on  the 
21st  of  March,  1871,  leaving  several  heirs  at  law,  of  whom  the  plaintiff 
in  error  is  one.  The  possession  of  the  plaintiff  in  error  is  admitted  to 
be  the  possession  of  all  the  heirs  of  Samuel  H.  Doty. 

Daniel  Wade  Teller  died  on  the  3d  of  March,  1889,  leaving  his  chil- 
dren, Asher  Teller,  Phoebe  J.  Decker,  and  Lewis  Teller,  the  plaintiffs 
below,  and  defendants  in  error,  and  two  children  of  a  deceased  daugh- 
ter, his  only  heirs  at  law.  At  the  circuit  court  the  defendant  was  found 
guilty  as  to  the  undivided  three-fourths  of  the  premises  sued  for. 

McGiLL,  Ch.,  (after  stating  the  facts).  A  single  question  is  pre- 
sented by  the  error  assigned  in  this  case.  It  is  whether  Daniel  Wade 
Teller  took  a  fee  or  merely  an  estate  for  life  under  the  will  of  Daniel 
Wade.  That  will  devises  the  land  in  question,  after  the  death  of  the 
testator's  wife,  "to  him  and  to  his  heirs,  entail  the  same,  forever."  The 
construction  must  depend  upon  the  force  or  effect  which  is  to  be  ac- 
corded to  the  words  "entail  the  same."  Without  those  words,  the  dev- 
isees would  clearly  take  the  lands  devised  in  fee.  Their  natural  im- 
port, in  the  connection  in  which  they  are  used,  is  to  condition  or  qualify 
the  fee  that  is  given.  The  effect  designed  by  them  is  expressed  by  the 
word  "entail,"  the  well-recognized  import  of  which  is  to  restrain  the 
fee  to  heirs  of  the  body  of  the  donee,  to  the  exclusion  of  collateral 
heirs,  and  imply  a  condition  that,  if  the  donee  dies  without  lineal  heirs, 
the  land  shall  revert  to  the  donor.  After  the  enactment  of  the  Statute 
of  Westminster  the  Second,  (13  Edw.  I.,)  commonly  called  "de  donis 
conditionalibus,"  the  conditional  fee  was  by  judicial  construction  re- 
solved into  a  particular  estate  known  as  a  "fee-tail."  Den  v.  Spachius, 
16  N.  J.  Law,  172.  Lands  held  by  that  estate  were  commonly  said  to 
be  entailed. 

As  the  word  "heirs"  is  necessary  to  the  creation  of  the  fee-simple  by 
deed,  so  the  additional  word  "body,"  or  some  other  word  of  procrea- 
tion, was  necessary  to  create  a  fee-tail  by  such  an  instrument.  But  in 
wills,  where  the  cardinal  rule  of  construction  is  that  the  testator's  mani- 
fest intention  shall  prevail  over  all  forms  of  expression,  these  correct 


254  CONSTRUCTION NATURE  AND  DURATION  OF  INTERESTS 

and  technical  words  have  never  been  considered  essential.  Any  ex- 
pressions in  the  will,  denoting  an  intention  to  give  the  devisee  an  estate 
of  inheritance  descendible  to  his  or  some  of  his  lineal,  but  not  col- 
lateral, heirs,  have  always  been  regarded  as  a  sufficient  devise  of  a  fee- 
tail.  3  Jarm.  Wills,  (Rand.  &  T.  Ed.)  89;  1  Washb.  Real  Prop.  109;  2 
Bl.  Comm.  115 ;  Den  v.  Fogg,  3  N.  J.  Law,  819;  Somers  v.  Pierson,  16 
N.  J.  Law,  181 ;  Den  v.  Cox,  9  N.  J.  Law,  10;  Den  v.  Smith,  10  N. 
J.  Law,  39;  Weart  v.  Cruser,  49  N.  J.  Law,  475,  13  Atl.  36. 

In  the  devise  in  question  the  purpose  of  the  testator  is  very  plainly 
manifested.  He  meant  to  create  an  estate  tail.  Being  at  a  loss  for  the 
correct  and  technical  language  to  express  it,  instead  of  saying,  "to 
Teller  and  the  heirs  of  his  body  forever,"  he  said  "to  Teller  and  his 
heirs,  entail  the  same,  forever,"  specifying  the  result  he  wished  to  reach 
as  plainly  as  though  in  giving  a  fee-simple  he  had  so  said  in  place  of 
using  the  word  "heirs."  It  is  not  perceived  how  any  other  conclusion 
as  to  his  intention  can  be  reached  without  rejecting  the  words  "entail 
the  same"  as  meaningless  surplusage.  Nothing  in  the  context  of  the 
will  justifies  such  a  rejection.  All  other  expressions  in  the  instrument 
are  plainly  pertinent  to  the  subject-matter  dealt  with,  and  necessary  to 
signify  the  testamentary  purpose,  exhibiting  a  capacity  in  the  testator 
to  clearly  and  concisely  express  his  intentions. 

When  the  will  was  drawn,  estates  tail  existed  in  this  state,  recognized 
and  regulated  by  the  statute  of  August  26,  1784,  (Paters.  Laws,  53,) 
explained  by  the  act  of  March  23,  1786,  (Paters.  Laws,  78.)  They 
could  be  created  by  devise,  to  exist  during  the  life  of  the  devisee,  and 
to  descend  at  his  death  to  his  heirs,  according  to  the  rules  of  descent  of 
the  common  law.  But  the  instant  the  first  descent  was  cast,  that  instant 
the  estate  was  enlarged  ino  a  fee-simple.  Den  v.  Fogg,  3  N.  J.  Law, 
819;  Den  v.  Smith,  10  N.  J.  Law,  40;  Den  v.  Spachius,  16  N.  J.  Law, 
172 ;  Den  v.  Baldwin,  21  N.  J.  Law,  395. 

By  statute  of  the  13th  of  June,  1820,  (P.  L.  178,)  estates  tail  were 
abolished,  and  it  was  provided  that  a  devise  which,  under  the  statute, 
(13  Edw.  I.,)  would  be  held  to  create  an  estate  tail,  should  vest  an  estate 
for  life  only  in  the  devisee  and  a  fee-simple  in  his  children,  equally,  as 
tenants  in  common,  the  children  of  a  deceased  child  taking  their  par- 
ent's interest.  Revision,  p.  299,  §  11.  At  the  death  of  Daniel  Wade, 
after  the  latter  statute  went  into  effect,  the  will  in  question  first  spake, 
and  hence  Daniel  Wade  Teller  took  only  an  estate  for  life.  At  his  death 
the  defendants  in  error  became  entitled  to  recover  possession  of  the 
locus  in  quo. 

We  find  no  error,  and  therefore  affirm  the  judgment  below. 

J^' 


ESTATES  FOR  LIFE  255 


3.  THE  RULE  IN  SHELLEY'S  CASE* 


LEATHERS  v.  GRAY. 

(Supreme  Court  of  North  Carolina,  1888.    101  N.  C.  162,  7  S.  B.  657,  9  Am. 

St.   Rep.   30.) 

See  ante,  p.  207,  for  report  of  case. 


II.  Estates  for  Life* 


SKINNER  v.  MCDOWELL. 

(Supreme  Court  of  Illinois,  1897.     169  111.  365,  48  N.  E.  310,  61  Am.  St. 

Rep.  183.) 

WILKIN,  J.  This  is  a  bill  in  chancery  by  John  Skinner  et  al.  against 
Ruth  McDowell,  Edward  C.  McDowell,  Ellen  D.  Hasson,  Charles  Mc- 
Dowell, and  Alonzo  McDowell,  in  the  circuit  court  of  Fulton  county, 
to  enforce  the  collection  of  certain  judgments  at  law  before  that  time 
rendered  in  their  favor  against  Ruth  M.  McDowell  et  al.,  partners 
as  Turner,  Phelps  &  Co.,  bankers. 

Ruth  M.  McDowell,  as  the  wife  of  John  McDowell,  deceased,  held 
certain  lands  in  that  county,  by  virtue  of  the  following  clause  of  the 
last  will  of  her  husband,  as  follows :  "That  all  the  residue  of  my  es- 
tate, personal  and  real,  shall  be  held  by  my  wife,  Ruth  M.  McDowell, 
to  be  sold,  retained,  and  exchanged,  used,  and  managed  by  her  as 
•she  may  think  proper,  during  her  life;  and,  in  case  anything  may 
be  left  after  her  death,  it  is  my  desire  that  she  shall  make  some  ar- 
rangements to  have  it  equally  divided  among  our  children,  John  R., 
Edward  C.,  and  Ellen  D.  Hasson,  as  aforesaid." 

The  bill  alleges  that  Ruth  M.  McDowell  had  been  a  member  of  the 
above-named  banking  partnership,  and  that  certain  judgments  had 
been  rendered  against  it  in  favor  of  complainants;  that  the  partner- 
ship was  then  insolvent;  that  executions  had  been  issued  against  the 
members  of  the  partnership;  and  that  Ruth  M.  McDowell  had  ren- 
dered a  schedule  of  her  property,  showing  none  subject  to  the  execu- 
tions; whereupon  a  levy  was  made  upon  the  lands  so  held  by  her. 
It  is  then  alleged  that,  after  the  levy  of  the  executions,  she,  for  the 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  12*2,  123 
*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  124. 


256  CONSTRUCTION NATURE  AND  DURATION  OP  INTERESTS 

purpose  of  hindering  and  delaying  the  collection  of  said  judgments, 
fraudulently  confessed  herself  to  be  indebted  to  E.  C.  McDowell  in 
the  sum  of  $7,000,  and,  to  secure  the  same,  executed  a  mortgage  upon 
the  lands  levied  upon;  that  she  also  fraudulently  executed  a  second 
mortgage  to  James  M.  Stewart  and  G.  K.  Linton,  to  secure  an  indebt- 
edness of  $3,000  in  their  favor.  It  is  further  averred  that  the  de- 
fendants Ellen  D.  Hasson,  Edward  C.  McDowell,  Charles  McDowell, 
and  Alonzo  McDowell  claim  to  have  a  vested  interest  in  the  lands  in 
reversion,  remainder,  or  as  residuary  legatees,  or  in  some  other 
way.  The  prayer  is  that  said  mortgages  be  canceled,  and  that  "it  may 
be  found  that  the  said  defendants  Ellen  D.  Hasson,  daughter,  and 
Edward  C.  McDowell,  Charles  McDowell,  and  Alonzo  McDowell, 
sons,  of  John  McDowell,  deceased,  have  no  right,  title,  claim,  or 
interest"  in  the  lands,  and  that  they  may  be  held  subject  to  the  ex- 
ecutions. During  the  pendency  of  the  suit,  Ruth  M.  McDowell  died, 
and  a  decree  was  entered  directing  the  suit  to  be  thereafter  prosecuted 
against  all  defendants  except  Ruth  M.  McDowell. 

The  defendants  Ellen  Hasson,  Edward  C.,  Charles,  and  Alonzo  Mc- 
Dowell filed  their  answer,  denying  the  fraud  alleged,  and  averring  that 
they  had  at  the  commencement  of  the  suit,  and  still  have,  a  valid  legal 
claim,  title,  and  interest  in  the  lands.  ,In  defense  of  that  claim,  the 
defendants,  upon  the  hearing,  introduced  in  evidence,  and  relied  upon, 
the  foregoing  clause  of  their  father's  will.  The  bill  was  dismissed  for 
want  of  equity,  and  complainants  bring  the  cause  to  this  court  on 
error. 

We  think  the  merits  of  this  controversy  turn  upon  one  question, 
viz. :  What  is  the  legal  effect  of  that  clause  of  the  will  of  John  Mc- 
Dowell granting  to  his  widow  the  residue  of  his  estate,  "to  be  sold,  re- 
tained, and  exchanged,  used,  and  managed  by  her  as  she  may  think 
proper,  during  her  life;  and,  in  case  anything  may  be  left  after  her 
death,  *  *  *  she  shall  make  some  arrangements  to  have  it  equally 
divided,"  etc.?  If  it  gives  the  widow  but  a  life  estate  in  the  lands  in 
question,  vesting  in  his  children  a  remainder,  subject  to  be  defeated  by 
an  exercise  of  the  power  annexed  to  that  life  estate,  then  they  are  not 
subject  to  the  judgments  against  the  widow,  and  complainants  have 
no  standing  in  court. 

It  seems  to  be  the  contention  of  plaintiffs  in  error  that  the  language 
of  the  will  grants  to  the  wife  an  estate  in  fee,  without  any  remainder 
over  upon  any  condition  to  the  heirs  of  John  McDowell ;  and  reliance 
is  placed  upon  Redf.  Wills,  2,  to  sustain  the  position.  The  rule  there 
announced  is  "that  where  the  devisee  has  the  absolute  right  to  dis- 
pose of  the  property  in  his  own  unlimited  discretion,  and  not  a  mere 
power  of  apportionment  among  certain  specified  persons  or  classes, 
any  estate  over  is  void,  as  being  inconsistent  with  the  first  gift."  We 
think  counsel  in  error  as  to  the  application  of  that  rule  to  this  cause. 
Here  the  "first  gift,"  or  estate  of  the  first  taker,  is  "for  life."  True, 
the  life  tenant  is  given  the  right  to  sell,  retain,  exchange,  use,  and 


INTERESTS   IN   PERSONAL   PROPERTY  257 

manage  it,  "as  she  may  think  proper";  but,  under  the  decisions  of 
this  state,  her  title  is  not  thereby  enlarged  into  a  fee.  The  rule  is 
well  established  by  our  decisions  that  a  life  estate  may  be  created  with 
power  to  dispose  of  the  fee,  and  limit  a  remainder  after  the  termina- 
tion of  the  life  estate.  The  power  of  absolute  disposition  annexed  to 
a  life  estate  does  not  enlarge  it  into  an  estate  in  fee.  Kaufman  v. 
Breckinridge,  117  111.  313,  7  N.  E.  666;  Henderson  v.  Blackburn, 
104  111.  227,  44  Am.  Rep.  780;  In  re  Cashman's  Estate,  134  111.  92, 
24  N.  E.  963;  Walker  v.  Pritchard,  121  111.  221,  12  N.  E.  336.  From 
the  language  "in  case  anything  be  left  after  her  death"  it  is  also  man- 
ifest that  the  testator  intended  his  wife  to  have  the  right  to  absolutely 
dispose  of  the  property,  even  beyond  her  death,  if  she  deemed  it  neces- 
sary and  proper.  That  she  did  not  do.  She  died  without  disposing  of 
the  property  or  even  making  any  "arrangement"  for  its  disposition, 
as  indicated  by  the  testator.  Her  life  estate  and  all  power  over  the 
property  was  then  at  an  end,  and,  of  course,  was  not  subject  to  be 
levied  upon  by  her  creditors. 

Our  conclusion  upon  this  point  makes  it  unnecessary  to  discuss  the 
allegations  of  the  bill  charging  fraudulent  conveyances  by  her.  To 
admit  that  the  mortgages  mentioned  were  fraudulent,  and  set  them 
aside,  could  in  no  way  benefit  complainants.  We  are  satisfied  the 
decree  of  the  circuit  court  dismissing  the  bill  was  right,  and  should 
be  affirmed. 


III.  Interests  in  Personal  Property 


WHITTEMORE  v.  RUSSELL. 

(Supreme  Judicial  Court  of  Maine,  1888.     80  Me.  297,  14  Atl.  197,  6  Am.  St. 

Rep.  200.) 


,  C.  J.  In  this  amicable  proceeding  to  obtain  a  judicial  con- 
struction of  the  will  of  John  Whittemore,  the  first  question  encoun- 
tered is  one  of  fact,  which  is  whether  those  of  the  testator's  children 
who  do  not  receive  anything  under  the  will  were  intentionally  omitted 
or  not.  The  depositions  in  the  case  establish  beyond  doubt  that  the 
omission  was  intentional,  and  founded  on  good  reasons. 

The  question  of  law  which  attaches  to  this  branch  of  the  case  is 
whether  such  intention  may  be  shown  by  evidence  aliunde  the  will, 
in  connection  with  the  internal  evidence  exhibited  by  the  will  itself. 
We  cannot  doubt  that  parol  or  oral  evidence  is  admissible  for  such 
purpose.  The  evidence  does  not  contradict  the  will  in  any  way,  but, 

5  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  127. 
DUNM.CAS.  WILLS  —  17 


258  CONSTRUCTION NATURE  AND  DURATION  OF  INTERESTS 

on  the  contrary,  confirms  it.  It  relates  to  a  point  to  be  established 
under  the  statutes,  and  not  under  the  will.  The  section  of  the 
statute  referred  to  (Rev.  St.  c.  74,  §  9)  declares  that  the  will  shall 
not  be  affected  by  the  omission,  if  intentional,  or  if  not  occasioned 
by  mistake,  or  if  the  omitted  child  had  received  a  due  proportion  of 
the  estate  during  the  life  of  the  testator.  Surely,  those  matters  are 
in  most  cases  provable  only  by  oral  evidence.  The  authorities  gen- 
erally favor  this  exposition  of  the  law,  and  it  has  been  always  prac- 
ticed upon  in  this  state,  as  far  as  we  know,  as  an  unquestioned  prin- 
ciple. 1  Redf .  Wills,  298 ;  Schouler,  Wills,  §  21 ;  Wilson  v.  Fosket, 
6  Mete.  (Mass.)  400,  39  Am.  Dec.  736.  The  testator  gave  his  rea- 
sons to  his  family  for  his  intended  action  in  that  respect.  Of  course, 
if  oral  evidence  is  admissible,  his  own  declarations  may  be  proved. 
Converse  v.  Wales,  4  Allen  (Mass.)  512. 

Differences  exist  among  the  parties  as  to  £he  legal  effect  of  the 
principal  provision  in  the  will,  which  is  this :/  "I  give  to  my  wife  the 
use  of  the  remainder  of  my  property,  both  real  and  personal,  during 
her  natural  life-time,  and  after  her  decease  it  is  to  be  equally  divided 
between  my  children.  The  real  estate  may  be  sold  if  thought  ad- 
visable." 

It  is  clear  that  the  wife  takes  only  a  life-interest  in  the  realty,  for 
it  is  expressly  so  provided,  with  a  gift  over.  Words  would  fail  of  all 
sensible  meaning  to  determine  otherwise.  Stuart  v.  Walker,  72  Me. 
145,  39  Am.  Rep.  311,  and  cases  there  cited;  Copeland  v.  Barron,  72 
Me.  206.  The  will  in  Warren  v.  Webb,  68  Me.  133,  a  case  relied  on 
by  the  counsel  for  the  widow  in  the  present  case,  differs  from  this 
will,  and  that  case  stands  well  on  the  verge  of  the  law  of  testamen- 
tary construction. 

The  meaning  of  the  clause  providing  that  "the  real  estate  may  be 
sold,  if  deemed  advisable,"  is  invoked  by  the  bill.  Probably  the  tes- 
tator failed  fully  to  express  his  idea.  The  words  must  be  taken  as 
they  are.  The  land  can  be  sold  only  by  the  persons  to  whom  it  be- 
longs. No  power  of  sale  is  conferred  by  the  testator  on  the  executor 
or  any  trustee.  Si  voluit  non  dixit.  The  life-estate  may  be  possessed 
and  controlled  by  the  wife,  or  she  can  sell  it.  It  is  her  absolute  prop- 
erty; and  the  reversion  may  be  sold  by  the  heirs;  or  all  interested 
parties  can  join  in  selling  the  property,  dividing  the  proceeds  of  sale 
according  to  their  interests  therein. 

A  gift  of  the  use  of  personal  property  for  a  life-time,  with  a  gift 
over,  as  it  is  here,  is  to  be  regarded  according  to  the  nature  of  the 
property  and  other  circumstances.  If  of  perishable  articles,  the  use 
of  which  consists  in  their  consumption,  it  amounts  from  necessity  to 
an  absolute  gift  of  the  property.  If  of  articles  which  may  depreciate 
by  using,  but  which  will  not  necessarily  be  consumed  or  worn  out  in 
that  way,  a  full  title  thereto  is  not  given;  but  the  life-legatee,  under 
ordinary  circumstances  and  risks,  is  allowed  to  retain  possession  of  the 
articles  without  giving  security  for  their  preservation.  Circumstances 


INTEEEST8  IN   PERSONAL  PBOPERTY  259 

may,  however,  alter  the  case  as  to  such  property.  Where  the  use  of 
money  is  given,  the  gift  is  of  the  interest  only ;  and,  as  such  property 
may  be  easily  lost  or  wasted,  the  general  rule  is  that  the  legatee  must 
give  some  reasonable  security  to  safely  preserve  the  funds  of  the  re- 
mainder-man; or  the  money  may  go  into  the  hands  of  a  trustee,  of 
whom  a  bond  would  be  required.  And  all  these  general  rules  are  allow- 
ed to  bend  to  the  force  of  circumstances,  and  may  vary,  or  be  dispensed 
with,  even,  according  to  amounts,  situations,  wants,  and  such  probabili- 
ties and  possibilities  as  a  court  of  equity  may  deem  proper  to  con- 
sider in  deciding  the  question.  See  1  Jarm.  Wills,  (5th  Ed.)  *879, 
and  Bigelow's  notes ;  and  Field  v.  Hitchcock,  17  Pick.  (Mass.)  182,  28 
Am.  Dec.  288. 

The  counsel  for  the  widow  relies  upon  the  case  of  Starr  v.  McEwan, 
69  Me.  334,  in  which  the  order  was  that  the  executor  should  pass  per- 
sonal property  to  the  widow ;  the  court  remarking  that  its  possession 
would  be  a  matter  between  her  and  the  remainder-man.  That  was  all 
very  true  in  that  case,  where  the  property  was  evidently  small  in  value, 
and  was  not  money.  Here  the  parties  are  all  leaning  upon  the  court 
for  its  advice,  and  the  estate,  outside  of  the  realty,  is  money,  amount- 
ing to  $800. 

We  think  in  this  case  the  widow  should  give  a  bond,  or  a  trustee 
should  be  appointed;  or,  what  would  possibly  be  a  better  disposition 
of  so  small  a  fund,  the  parties  being  all  sui  juris,  they  may,  if  they 
can  agree,  divide  the  funds  according  to  their  respective  interests 
therein.  But  this,  and  other  incidental  matters,  may  be  best  arranged 
by  a  single  judge,  after  hearing  the  parties.  Decree  accordingly. 


260  CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 


CONSTRUCTION  (Continued)— VESTED  AND  CONTIN- 
GENT INTERESTS— REMAINDERS— EXECUTORY 

DEVISES 

I.  Vested  Legacies  * 


WARDWELL  v.  HALE. 

(Supreme  Judicial  Court  of  Massachusetts,  1894.    161  Mass.  396,  37  N.  E.  196, 

42  Am.  St  Rep.  413.) 

Action  by  Wardwell,  administrator  of  the  estate  of  Edward  Hale, 
against  Ruth  C.  Hale  and  others,  executors  and  trustees  under  the 
will  of  Ezekiel  J.  M.  Hale,  to  recover  a  legacy.  From  a  judgment  for 
plaintiff,  defendants  appealed.  Affirmed. 

FIELD,  C.  J.  The  seventh  article  of  the  will  of  Ezekiel  J.  Hale  is 
as  follows :  "Seventh.  I  give  to  my  son  Edward  Hale  the  sum  of  ten 
thousand  dollars  ($10,000),  to  be  .paid  to  him  at  my  decease,  if  he 
shall  then  have  arrived  at  the  age  of  twenty-one  years ;  if  he  shall  not 
then  be  twenty-one  years  old,  the  same  to  be  paid  to  him  when  he 
shall  attain  that  age.  I  also  give  to  him  the  sum  of  twenty  thousand 
dollars  ($20,000),  to  be  paid  to  him  when  he  shall  attain  the  age  of 
twenty-five  years,  together  with  the  further  sum  of  twenty  thousand 
dollars  ($20,000),  to  be  paid  to  him  when  he  shall  attain  the  age  of 
thirty  years.  Also,  I  give  to  him  the  annuity  of  thirty-six  hundred 
dollars  ($3,600),  to  be  paid  to  him  in  monthly  payments  during  his  ' 
life ;  and  at  his  decease  I  give  to  his  wife  and  children,  if  he  shall  leave 
a  wife  or  child  alive,  the  annuity  of  twenty-four  hundred  dollars  ($2,- 
400),  to  be  paid  to  them,  or  either  of  them,  until  the  final  division  of 
the  rest  and  residue  of  my  estate,  as  hereinafter  provided:  provided, 
however,  if  the  wife  of  my  said  son  shall  remarry,  her  interest  in  said 
annuity  shall  at  once  and  forever  cease." 

The  gift  of  the  foregoing  legacies  to  Edward  Hale,  except  the 
annuity,  is  in  terms  absolute,  but  the  time  of  payment  is  postponed 
until  the  legatee  reaches  the  ages  mentioned.  Ten  thousand  dollars 
is  to  be  paid  to  him  "at  my  decease,  if  he  shall  have  arrived  at  the  age 
of  twenty-one  years ;  if  he  shall  not  then  be  twenty-one  years  old,  the 
same  to  be  paid  to  him  when  he  shall  attain  that  age."  Twenty  thou- 
sand dollars  is  "to  be  paid  to  him  when  he  shall  attain  the  age  of 
twenty-five  years,"  and  the  further  sum  of  $20,000  is  "to  be  paid 
to  him  when  he  shall  attain  the  age  of  thirty  years."  It  seems  impos- 
sible to  distinguish  between  these  legacies,  and  to  hold  that  the  first  vest- 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  128-130. 


VESTED   LEGACIES  261 

ed  on  the  death  of  the  testator,  and  that  the  last  two  did  not.  There 
is  no  specific  gift  over  in  case  Edward  Hale  dies  before  attaining  the 
age  of  21  years  or  of  25  years  or  of  30  years,  although  there  is  a  gift 
of  the  residue  by  the  twenty-second  article,  which  provides  as  fol- 
lows: "As  to  the  residue  and  remainder  of  all  my  estate,  both  real 
and  personal,  not  herein  otherwise  disposed  of,  it  is  my  will  that  the 
same  be  and  remain  in  the  care  and  control  of  my  said  executrix  and 
executors  and  trustees,  and  their  successors,  well  and  safely  invested, 
until  the  decease  of  the  last  survivor  of  the  life  annuitants  named  in  my 
foregoing  will,  and  that  then  the  said  residue  and  remainder,  with  all 
the  accumulated  interest  thereof,  shall  be  equally  divided  among  my 
grandchildren,  per  stirpes,  to  hold  to  such  grandchildren  so  distributed, 
and  to  their  heirs,  executors,  administrators,  and  assigns,  forever." 

The  only  probable  reason  for  postponing  the  payment  of  the  legacies 
to  Edward  Hale  is  that  before  he  should  reach  the  age  of  21  years  a 
guardian  might  be  necessary  and  that  after  he  reached  that  age  he 
might  be  less  competent  to  manage  his  property  at  the  age  of  21  years 
than  at  the  age  of  25  or  of  30  years. 

The  first  clause  of  the  fifth  article  of  the  will  is  as  follows :  "I  give 
to  my  son  Harry  H.  Hale  the  sum  of  fifty  thousand  dollars  ($50,000), 
to  be  paid  to  him  at  my  decease;  and  if  he  shall  survive  me  for  the 
period  of  five  years,  but  not  otherwise,  I  direct  my  executrix  and  my 
executors  and  trustees,  at  the  expiration  of  five  years  from  my  death, 
to  pay  to  him  the  further  sum  of  fifty  thousand  dollars  ($50,000). 
But,  if  he  shall  not  live  five  years  after  my  death,  the  sum  of  fifty 
thousand  dollars  is  to  remain  a  part  of  my  estate."  This  shows  that 
the  testator  knew  how  to  use  apt  words  when  he  intended  that  a 
pecuniary  legacy  should  be  contingent  until  the  legatee  reached  the 
age  when  it  was  to  be  paid  to  him. 

In  other  articles  of  the  will  the  testator  gives  pecuniary  legacies  to 
be  paid  to  other  legatees  when  they  reach  a  certain  age,  and  he  uses 
substantially  the  same  language  as  in  the  seventh  article. 

The  weight  of  authority  is,  we  think,  that  the  legacies  to  Edward 
Hale  of  $10,000,  $20,000,  and  $20,000  vested  in  him  on  the  death  of 
the  testator,  and  that  only  the  time  of  payment  was  postponed  until 
he  should  reach  the  ages  respectively  prescribed.  Eldridge  v.  Eldridge, 
9  Cush.  516,  519;  Furness  v.  Fox,  1  Cush.  134,  48  Am.  Dec.  593; 
Shattuck  v.  Stedman,  2  Pick.  468.  See  Claflin  v.  Claflin,  149  Mass. 
22,  20  N.  E.  454,  3  L.  R.  A.  370,  14  Am.  St.  Rep.  393;  1  Jarm.  Wills 
(6th  Ed.,  by  Bigelow)  *794. 

We  are  of  opinion  that  the  ruling  of  the  superior  court  was  right. 
Judgment  for  the  plaintiff  affirmed. 


262  CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 


II.  Vested  Remainders  * 


HAVILAND  v.  HAVILAND. 

(Supreme  Court  of  Iowa,  1905.     130  Iowa,  611,  105  N.  W.  354,  5  I*  R.  A. 

[N.   S.]  281.) 

Action  in  equity  to  set  aside  a  deed  and  to  establish  an  interest  in 
real  property.  There  was  a  judgment  for  the  plaintiff,  from  which  the 
defendants  appeal. 

SHERWIN,  C.  J.  A.  J.  Haviland  and  Mary  C.  Haviland  were  hus- 
band and  wife.  In  1886  A.  J.  Haviland  executed  a  will  which  con- 
tained the  following  clauses :  "First.  I  order  and  direct  that  my  execu- 
tors hereinafter  named  pay  all  my  just  debts  and  funeral  expenses  as 
soon  after  my  decease  as  conveniently  may  be.  Second.  After  the  pay- 
ment of  such  funeral  expenses  and  debts,  I  give,  devise  and  bequeath 
to  my  wife  Mary  C.  Haviland  all  my  property,  real  estate  and  per- 
sonalty, wherever  the  same  may  be  found,  for  her  exclusive  use  and 
benefit  during  her  life  and  after  her  death  and  funeral  expenses  are 
paid  what  remains  to  be  equally  divided  between  my  children,  except 
the  following  articles  which  are  to  be  given  to  the  parties  hereinafter 
named  by  my  wife  Mary  C.  Haviland  after  my  death  as  soon  as  prac- 
ticable." The  property  specifically  devised  in  the  last  clause  were 
articles  of  personal  property,  which  are  not  involved  in  this  action. 
The  will  named  executors,  and  asked  that  they  be  allowed  to  sell  at 
public  or  private  sale,  without  accounting  to  the  probate  court. 

A.  J.  Haviland  died  in  1888,  leaving  his  widow,  Alary  C.  Haviland, 
three  sons,  Willy  C.  Haviland,  Elmer  E.  Haviland,  and  Perry  A. 
Haviland,  and  two  daughters,  Lucy  J.  Black  and  Mary  E.  Humpherys. 
Elmer  E.  Haviland  died  intestate  and  without  issue  in  1891,  leaving 
a  widow,  Julia  A.  Haviland,  the  plaintiff  herein.  Mary  C.  Haviland, 
the  widow  of  A.  J.  Haviland,  died  intestate  in  May,  1901.  A.  J.  Havi- 
land died  seised  of  the  property  in  controversy;  it  being  commonly 
known  as  the  "Haviland  Nursery  Property."  On  the  17th  day  of 
April,  1891,  Elmer  E.  Haviland  and  the  plaintiff,  his  wife,  executed  a 
deed  quitclaiming  to  Mary  C.  Haviland  all  of  their  interest  in  the  land 
in  controversy.  This  suit  was  commenced  in  1902;  the  plaintiff 
alleging  that  the  deed  was  procured  by  fraud,  that  it  was  never  com- 
pletely executed  or  delivered,  and  that  it  was  without  consideration. 
The  trial  court  found  that  the  conveyance  was  never  completed  or  de- 
livered, that  the  will  of  A.  J.  Haviland  created  a  life  estate  only  in  his 
widow,  Mary  C.  Haviland,  and  found  the  plaintiff  to  be  the  owner 
of  an  interest  therein. 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  131,  132. 


VESTED   REMAINDERS  263 

It  is  contended  by  the  appellants  that  the  second  clause  of  the  will 
devised  to  Mary  C.  Haviland  an  estate  in  fee,  but  we  are  clearly  of 
opinion  that  nothing  more  than  a  life  estate  was  devised  to  her.  The 
will  gave  to  her  the  property  for  her  "exclusive  use  and  benefit  during 
her  life."  Language  could  hardly  have  been  selected  which  would 
have  been  plainer  or  more  unequivocal,  and  we  do  not  think  it  neces- 
sary to  again  discuss  the  principles  governing  the  construction  of  wills, 
or  review  the  many  cases  cited  by  the  appellants  in  support  of  their 
contention.  Our  conclusion,  that  only  a  life  estate  was  devised  by  this 
clause  of  the  will,  is  fully  sustained  by  the  following  cases :  Rowe  v. 
Rowe,  120  Iowa,  17,  94  N.  W.  258;  Podaril  v.  Clark,  118  Iowa,  264, 
91  N.  W.  1091;  Baldwin  v.  Morford,  117  Iowa,  73,  90  N.  W.  487; 
Smith  v.  Runnells,  97  Iowa,  55,  65  N.  W.  1002 ;  In  re  Proctor's  Es- 
tate, 95  Iowa,  172,  63  N.  W.  670;  Jordan  v.  Woodin,  93  Iowa,  453, 
61  N.  W.  948;  Stivers  v.  Gardner,  88  Iowa,  307,  55  N.  W.  516.  If 
power  to  sell  can  be  implied  from  the  language  of  this  clause,  it  is  very 
clear  that  sale  could  only  be  made  for  the  purpose  of  her  "support, 
comfort  and  maintenance."  In  Baldwin  v.  Morford,  supra,  the  will 
expressly  gave  authority  to  sell  for  such  purpose,  and  we  held  that, 
notwithstanding  this,  a  life  estate  only  was  devised. 

The  appellants  further  contend  that,  if  the  will  created  a  life  estate 
only  in  Mary  C.  Haviland,  no  interest  vested  in  the  children  until  the 
termination  of  the  life  estate,  and,  Elmer  E.  Haviland  having  died 
before  his  mother,  that  the  plaintiff  is  entitled  to  nothing  as  his  sur- 
viving widow.  If  the  remainder  after  the  particular  estate  of  Mary 
C.  Haviland  was  vested  absolutely  at  the  death  of  the  testator  and  the 
time  of  distribution  and  enjoyment  was  alone  postponed,  the  interest 
which  the  plaintiff  now  claims  as  the  surviving  widow  of  Elmer  E. 
Haviland  was  properly  decreed  her,  but,  on  the  contrary,  if  the  estate 
itself  did  not  vest  in  the  children  until  the  termination  of  the  life  es- 
tate, she  is  entitled  to  nothing,  because  of  her  husband's  death  before 
the  death  of  his  mother,  and  hence  before  the  termination  of  her  estate. 
We  think  there  can  be  no  serious  question  as  to  the  intent  of  the  tes- 
tator. The  will  gives  the  wife  a  life  estate  only  in  express  terms,  and 
then  provides  that  after  her  death  the  remainder  shall  be  divided 
among  his  children.  The  words  creating  the  devise  to  the  children 
are  of  common  use  in  wills,  and,  as  said  in  Archer  v.  Jacobs,  125  Iowa, 
467,  101  N.  W.  195,  save  in  a  few  exceptional  cases,  the  courts  have 
uniformly  held  them  to  refer  to  the  time  when  the  remainderman 
shall  come  into  the  enjoyment  of  the  estate,  and  not  to  the  time  when 
his  interest  vests.  The  same  words  or  those  of  the  same  import  have 
been  so  construed  in  the  following,  among  others,  of  our  own  cases : 
Archer  v.  Jacobs,  supra,  and  cases  cited  therein;  Tarbell  v.  Smith, 
125  Iowa,  388,  101  N.  W.  118;  In  re  Proctor's  Will,  supra;  Callison 
v.  Morris,  123  Iowa,  297,  98  N.  W.  780.  See,  also,  Moore  v.  Matth- 
ews, 70  N.  J.  Eq.  373,  61  Atl.  743. 


264  CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 

The  law  favors  vested  estates;  and,  unless  it  clearly  appears  that 
the  testator  intended  otherwise,  the  rule  will  prevail.  Tarbell  v.  Smith, 
supra;  Collins  v.  Collins,  116  Iowa,  703,  88  N.  W.  1097.  Nor  is  the 
conclusion  we  reach  here  in  conflict  with  the  holding  in  McClain  v. 
Capper,  98  Iowa,  145,  67  N.  W.  102,  and  in  Taylor  v.  Taylor,  118 
Iowa,  408,  92  N.  W.  71.  In  the  former  case  the  language  of  the  will 
was  as  follows:  "I  will  and  bequeath  to  my  beloved  wife  during  the 
minority  of  my  children  the  entire  use  and  benefit  of  my  real  estate 
for  the  purpose  of  supporting  and  educating  my  children;  and  when 
my  youngest  child  arrives  at  full  age  I  desire  that  the  real  estate 
(after  my  wife's  dower  is  set  off  to  her  herein)  be  equally  divided 
between  my  children,  Margaret  Jane,  Rose  Ann,  Oscar  S.,  Flora  E., 
Harvey  M.  and  John  K.,  their  heirs  or  survivors  of  them."  It  is 
clear  therefrom  that  it  was  the.  testator's  intent  to  postpone  the  inter- 
est of  his  children  until  the  youngest  became  of  age.  The  estate  was 
vested  in  the  wife,  not  for  her  use  and  benefit,  but  for  the  purpose  of 
supporting  and  educating  the  children  during  their  minority,  thus 
showing  an  intent  to  postpone  the  interest;  for,  if  the  estate  had 
vested  in  them  at  his  death,  they  would  have  come  into  the  immediate 
possession  thereof  because  there  was  no  intervening  estate  in  any  one 
else.  In  the  Taylor  Case  the  holding  was  based  on  the  peculiar  lan- 
guage devising  the  remainder  in  equal  shares  "between  my  children 
or  their  heirs,"  and  the  case  is  distinguished  in  Archer  v.  Jacobs,  supra. 

The  last  question  for  determination  is  one  of  fact,  viz.,  was  there 
a  valid  conveyance  of  the  interest  of  Elmer  E.  Haviland?  We  are 
fully  satisfied  there  was  not.  The  evidence  fairly  shows  that  the  deed 
was  executed  with  the  express  understanding  that  it  was  not  to  be 
effective  or  to  be  delivered  until  the  other  children  executed  it,  and 
thereby  conveyed  their  interest  in  the  land  to  the  mother,  and  this  they 
never  did.  Without  this,  the  instrument  was  not  complete  and  con- 
veyed nothing,  even  though  delivered.  Overman  and  Brown  v.  Kerr, 
17  Iowa,  485 ;  9  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  145,  158.  The 
judgment  is  right,  and  it  is  affirmed. 


CONTINGENT  REMAINDERS  265 


III.  Contingent  Remainders  8 


HAWARD  v.  PEAVEY. 

(Supreme  Court  of  Illinois,   1889.     128  111.  430,   21  N.   E.   503,   15  Am.   St. 

Rep.  120.) 

Petition  for  partition  by  Angenette  J.  Peavey  against  William  Ha- 
ward,  Robert  Haward,  and  others.  Decree  for  petitioner,  and  defend- 
ants appeal. 

BAILEY,  J.4  The  petitioner  in  this  case  claims  title  in  fee  to  an 
undivided  one-fourth  of  the  land  in  question,  by  virtue  of  the  sale  un- 
der execution  of  Robert  Haward's  interest  therein,  and  the  decree  can 
be  sustained  only  upon  the  theory  that  at  the  time  of  the  levy  and  sale 
Robert  Haward  was  the  owner  of  an  estate  in  said  land  subject  to  ex- 
ecution. The  appellants  insist  that  Robert  Haward  at  that  time  had 
no  vested  interest  in  the  land,  and  in  support  of  their  contention  they 
submit  two  propositions,  viz. :  First.  That  by  the  will  of  James  Ha- 
ward, deceased,  said  land  was  directed  to  be  converted  into  money,  and 
the  money  divided  among  his  sons,  thus  working  an  equitable  conver- 
sion of  the  land,  eo  instanti,  upon  the  death  of  the  testator.  Second. 
If  there  was  no  conversion,  the  interest  given  to  Robert  Haward  by 
the  will  of  his  father  was  not  a  vested,  but  a  contingent,  remainder,  and 
that  such  remainder  did  not  become  vested  until  after  said  levy  and 
sale.  It  must  be  admitted  that,  if  either  of  these  propositions  can  be 
sustained,  the  sale  under  the  execution  was  nugatory,  and  vested  no 
title  in  the  purchaser.  *  *  * 

The  will  gives  all  his  property,  both  real  and  personal,  to  his  execu- 
tors, in  trust  for  the  benefit  and  support  of  the  testator's  wife,  so  long 
as  she  should  remain  his  widow,  and  it  was  provided  that  the  widow 
and  certain  of  the  sons  might,  if  they  thought  best,  carry  on  the  farm, 
or  a  part  of  it;  or,  if  they  wished  to  give  up  farming,  the  executors 
were  authorized  to  sell  his  personal  property  and  invest  the  proceeds, 
and  rent  the  land,  paying  to  the  widow  the  rent  and  the  interest  on 
the  money  invested.  The  direction  to  convert  the  land  into  money,  if 
it  exists  at  all,  must  be  found  in  the  following  clause  of  the  will :  "On 
the  death  of  my  wife,  or  in  the  event  of  her  marrying  again,  my  execu- 
tors shall  then  proceed  to  divide  the  property  among  my  children.  To 
my  son  William  I  give  two  hundred  dollars  as  his  share,  as  I  think  he 
is  better  provided  for  than  the  others,  and  the  land  I  wish  kept  in  the 
family,  and  my  executors  may  sell  it  to  any  of  the  boys  at  its  full  value, 
and  the  proceeds  of  my  property,  both  real  and  personal,  to  be  divided 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  133,  134. 
*  Part  only  of  the  opinion  is  given. 


266     CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 

among  my  children, — William,  as  above  mentioned,  two  hundred  dol- 
lars, and  the  residue  equally  divided  between  such  of  my  children — 
George,  Robert,  James,  and  Thomas — as  may  be  alive,  or  the  lawful 
issue  of  such  of  them  as  may  be  dead,  leaving  lawful  issue."  *  *  * 

The  lands  of  James  Haward,  deceased,  being  devised  to  his  execu- 
tors, to  be  held  in  trust  for  his  widow  during  widowhood,  and  then  to 
be  divided  among  his  children,  the  four  sons  specially  named  in  the 
will  took  only  an  estate  in  remainder,  and  the  material  question  here  is 
whether  the  remainder  devised  to  his  son  Robert  was,  at  the  time  of 
the  execution  sale,  vested  or  contingent.  The  proposition  is  not  con- 
troverted that  if  it  was  merely  contingent  it  was  not  subject  to  sale  on 
execution.  This  proposition  seems  to  be  supported  by  the  following 
authorities :  Watson  v.  Dodd,  68  N.  C.  530 ;  Jackson  v.  Middleton,  52 
Barb.  (N.  Y.)  9;  Baker  v.  Copenbarger,  15  111.  103,  58  Am.  Dec.  600; 
Freem.  Ex'rs,  §  178.  The  will  provides  that,  upon  the  death  or  remar- 
riage of  the  widow,  the  executors  shall  proceed  to  divide  the  estate  of 
the  testator  among  his  children ;  but,  in  fixing  the  mode  in  which  the 
division  shall  be  made,  it  provides  that  William  shall  be  given  $200  in 
money  as  his  share,  "and  the  residue  equally  divided  between  such  of 
my  children — George,  Robert,  James,  and  Thomas — as  may  be  then 
alive,  or  the  lawful  issue  of  such  of  them  as  may  be  dead,  leaving  law- 
ful issue." 

A  remainder  is  said  to  be  vested  where  a  present  interest  passes  to  a 
party  to  be  enjoyed  in  the  future,  so  that  the  estate  is  invariably  fixed 
in  a  determinate  person  after  the  particular  estate  terminates ;  while  a 
contingent  remainder  is  one  limited  to  take  effect,  either  to  a  dubious 
and  uncertain  person,  or  upon  a  dubious  and  uncertain  event.  2  Bl. 
Comm.  168.  This  definition  is  adopted,  in  substance,  by  all  the  text- 
writers,  and  is  sufficiently  accurate.  But  it  does  not  necessarily  follow 
that  every  estate  in  remainder  which  is  subject  to  a  contingency  or  con- 
dition is  a  contingent  remainder.  The  condition  may  be  precedent  or 
subsequent  If  the  former,  the  remainder  cannot  vest  until  that  which 
is  contingent  has  happened,  and  thereby  become  certain.  If  the  latter, 
the  estate  vests  immediately,  subject  to  be  defeated  by  the  happening  of 
the  condition.  Bromfield  v.  Crowder,  1  Bos.  &  P.  (N.  R.)  313 ;  Blanch- 
ard  v.  Blanchard,  1  Allen  (Mass.)  223;  Manice  v.  Manice,  43  N.  Y. 
380 ;  2  Washb.  Real  Prop.  (4th  Ed.)  579.  It  is  plain  that  in  the  present 
case  the  estate  devised  was,  so  far  as  Robert  Haward  was  concerned, 
subject  to  a  contingency,  viz.,  his  being  alive  at  the  time  the  particular 
estate  should  be  determined  by  the  death  or  remarriage  of  the  widow. 
Whether  this  contingency  constituted  a  condition  precedent  or  subse- 
quent must  be  determined  by  the  language  of  the  will.  While  the  prop- 
er construction  of  the  will  is  not  a  matter  wholly  free  from  doubt,  it 
seems  to  be  clear  that  the  intention  of  the  testator  was  not  to  devise  to 
his  son  Robert  a  present  estate,  subject  to  be  defeated  in  case  of  his 
death  before  the  termination  of  the  particular  estate,  but  to  make  the 
estate  itself  conditional  upon  his  being  alive  at  that  time.  The  devise 


CONTINGENT   REMAINDERS  267 

was  not  to  him,  or  to  him  and  his  three  brothers,  but  only  to  such  of 
the  four  as  should  be  alive  at  the  death  or  remarriage  of  the  widow. 
If  one  or  more  of  the  sons  named  had  died  before  the  death  of  the  wid- 
ow, it  would  have  been  doing  violence  to  the  language  of  the  will  to 
hold  that  any  estate  was  thereby  vested  in  them.  They  would  have 
been  excluded  by  the  very  terms  of  the  will  from  the  number  of  those 
named  as  beneficiaries.  The  persons  to  whom  the  estate  would  go  be- 
ing wholly  uncertain  during  the  continuance  of  the  particular  estate, 
it  must  be  held  that  the  contingency  named,  viz.,  that  the  persons  who 
were  to  take  the  estate  should  be  alive  at  the  death  or  remarriage  of  the 
widow,  was  a  condition  precedent  to  the  vesting  of  the  estate,  and  that 
until  the  condition  happened  the  estate  was  necessarily  contingent. 

The  cases  to  be  found  in  the  reports,  so  far  as  they  can  aid  us  in  the 
interpretation  of  the  will  under  consideration,  seem  to  support  the 
view  we  have  here  expressed.  In  Olney  v.  Hull,  21  Pick.  (Mass.)  311, 
the  testator,  after  devising  to  his  wife  the  use  of  his  real  estate  while 
she  remained  his  widow,  proceeded  as  follows :  "Should  my  wife  mar- 
ry or  die,  the  land  shall  then  be  equally  divided  among  my  surviving 
sons,  with  each  son  paying  $60  to  my  daughters,  to  be  equally  divided 
among  them,  as  soon  as  each  son  may  come  into  possession  of  said 
land."  It  was  held  that  until  the  death  or  marriage  of  the  widow  it  was 
uncertain  who  would  be  alive  to  take,  and  therefore  that  no  estate 
vested  in  any  one  before  that  event  happened.  In  Nash  v.  Nash,  12 
Allen  (Mass.)  345,  the  testator  devised  the  use  of  his  real  estate  to 
his  wife  during  life,  and  at  her  death  the  fee  to  such  of  his  children 
as  might  be  then  living,  share  and  share  alike,  and  it  was  held  that, 
during  the  life  of  the  widow,  the  estates  given  to  the  children  were 
contingent,  and  not  vested.  In  Thomson  v.  Ludington,  104  Mass.  193, 
the  testator  gave  his  estate  to  his  widow  during  life  or  widowhood, 
and  directed  that  at  her  decease  or  marriage  the  estate  should  be  di- 
vided "equally  to  and  among  such  of  my  children  as  shall  then  be  liv- 
ing, share  and  share  alike.  The  names  of  my  said  children  are  George 
C.,  Ann  L.,  Lucy  M.,  Francis  H.,  and  Caroline  E.  To  them,  and  to 
their  heirs  and  assigns,  forever."  It  was  there  held  that  the  will  gave 
only  a  contingent  remainder  to  such  of  the  children  as  should  happen 
to  be  living  when  the  contingency  of  such  death  or  marriage  happened. 

The  case  of  Blanchard  v.  Blanchard,  1  Allen  (Mass.)  223,  may  be  re- 
ferred to  as  a  fair  illustration  of  a  vested  remainder,  liable  to  be  di- 
vested by  the  happening  of  a  condition  subsequent.  There  the  testator 
devised  to  his  wife  all  the  income  of  all  his  real  and  personal  property, 
and  then  devised  as  follows:  "I  give  and  bequeath  to  my  beloved 
daughter  Elizabeth  Ford  Blanchard,  to  my  daughter  Mary  Jane 
Blanchard,  to  my  daughter  Anna  Dawson  Morrison  Blanchard,  to  my 
son  Henry  Blanchard,  and  my  son  Samuel  Orne  Blanchard,  all  the 
property,  both  real  and  personal,  that  may  be  left  at  the  death  of  my 
wife,  to  be  divided  equally  between  the  last  five  named  children.  And 
provided,  furthermore,  that,  if  any  of  the  last  five  named  children  die 


268  CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 

before  my  wife,  then  the  property  to  be  equally  divided  between  the 
survivors,  except  they  should  leave  issue;  in  that  case  to  go  to  said 
issue,  provided  the  said  issue  be  legitimate."  The  testator  had  10  chil- 
dren, all  of  whom  survived  the  wife.  The  court  held  that  the  portion 
of  the  clause  above  quoted,  preceding  the  proviso,  presented  the  ordi- 
nary case  of  a  devise  to  the  wife  for  life,  remainder  in  fee  at  the  death 
to  five  of  her  children,  to  be  equally  divided  between  them.  There  be- 
ing in  that  portion  of  the  devise  no  words  of  contingency,  such  as  "if 
they  shall  be  living  at  her  death,"  or  "to  such  of  them  as  shall  be  liv- 
ing," the  usual  and  proper  phrases  to  constitute  a  condition  precedent,  a 
vested  remainder  was  created  in  the  children  named  as  tenants  in  com- 
mon. In  construing  the  proviso,  it  was  admitted  that,  if  its  effect  was 
to  limit  the  remainder  to  such  of  the  children  named  as  should  survive 
their  mother,  the  remainder  would  be  contingent ;  but  it  was  held,  after 
a  full  review  of  the  authorities,  that  the  proviso  merely  introduced  into 
the  devise  a  condition  subsequent,  and  that  the  remainder  was  vested, 
subject  to  be  divested  upon  the  happening  of  the  condition. 

The  foregoing  cases  sufficiently  illustrate  the  principles  upon  which 
the  will  in  this  case  must  be  construed.  The  devise  was  to  such  of 
four  persons  as  should  be  alive  at  the  termination  of  the  particular  es- 
tate. Until  that  time  arrived,  it  could  not  be  told  who  were  to  be  the 
beneficiaries  of  the  devise.  Until  that  time  the  persons  to  take  were 
not  and  could  not  be  identified,  and  until  that  time  it  was  wholly  un- 
certain whether  Robert  Haward  was  one  of  them  or  not.  It  follows 
that  at  the  time  the  land  in  question  was  sold  under  execution,  Robert 
Haward's  interest  was  only  a  contingent  remainder,  which  was  not  sub- 
ject to  levy  and  sale,  and  that  no  title,  therefore,  passed  to  the  pur- 
chaser by  the  marshal's  deed.  An  attempt  is  made  to  distinguish  this 
case  from  the  cases  above  cited,  upon  the  fact  that  in  this  case  the  four 
possible  beneficiaries  of  the  devise  were  mentioned  by  name,  while  in 
the  cases  cited,  or  in  most  of  them,  the  devise  was  to  the  children  who 
should  be  alive  at  the  termination  of  the  particular  estate,  as  a  class. 
Even  that  distinction  does  not  exist  between  this  case  and  Thomson  v. 
Ludington,  as  there  the  children  were  all  mentioned  by  name,  and  it 
is  not  even  suggested  there  that  that  fact  made  any  difference  with 
their  rights.  But  we  are  unable  to  see  how  there  can  be  any  greater 
degree  of  certainty  in  the  designation  of  the  beneficiaries  where  all  the 
persons  in  the  class  are  mentioned  by  name  than  where  they  are  sim- 
ply designated  as  a  class,  so  long  as  the  devise  is  only  to  such  of  the 
persons  named,  or  of  the  class,  as  may  be  alive  at  the  expiration  of  the 
life-estate.  The  contingency  grows  out  of  the  use  of  the  words  "to 
such  of  them  as  shall  be  living,"  which,  as  said  in  Blanchard  v.  Blanch- 
ard,  is  a  proper  phrase  to  constitute  a  condition  precedent. 

The  decree  of  the  court  below,  finding  that  the  petitioner  is  the 
owner  in  fee  of  an  undivided  one-fourth  of  the  land  sought  to  be  par- 
titioned, is  unsupported  by  the  evidence.  The  decree  will  therefore  be 
reversed,  and  the  cause  remanded.  Decree  reversed. 


EXECUTORY  DEVISES  269 


IV.  Executory  Devises  § 


DE  WOLF  v.  MIDDLETON. 

(Supreme  Court  of  Rhode  Island,  1893.     18  R.  I.  810,  26  Atl.  44,  31  Atl.  271, 

31  L.  R.  A.  146.) 

MATTESON,  C.  J.  This  is  a  bill  for  partition.  By  agreement  of 
the  parties,  a  hearing  was  had  for  the  purpose  of  obtaining  a  construc- 
tion of  the  second  and  fifth  clauses  of  the  will  of  William  De  Wolf, 
formerly  of  Bristol,  deceased;  the  question  involved  being,  what  es- 
tates did  the  daughters  of  the  testator  take  under  these  clauses  in  the 
lands  therein  described  ? 

The  second  clause,  after  devising  the  testator's  farm  known  as  the 
"Poppasquash  Farm"  to  his  widow  for  life,  proceeds  as  follows :  "Aft- 
er her  decease,  I  do  give  and  devise  the  same  real  estate  to  my  two 
dear  daughters,  Charlotte  and  Maria,  their  heirs  and  assigns,  forever : 
provided,  however,  that  in  case  my  said  daughters,  Charlotte  and 
Maria,  should  die,  leaving  no  surviving  issue,  then  it  is  my  will  that  the 
estate,  on  their  decease,  be  divided  among  my  heirs  at  law,  according 
to  the  statutes  of  descents,  their  heirs  and  assigns,  forever;  and  I  do 
devise  the  same  accordingly."  The  fifth  clause  is  a  devise  directly  to 
the  daughters  named  of  his  Hope  street  estate,  in  the  same  language 
as  quoted  from  the  second  clause,  except  that  for  the  words  "on  their 
decease"  the  words  used  are  "on  both  their  decease." 

Neither  of  these  daughters  left  issue  surviving  at  her  death.  Each 
left  a  will.  Neither  will  contains  any  mention  of  either  the  Poppa- 
squash  farm  or  the  Hope  street  estate,  but  each,  after  making  specific 
bequests,  devises  in  general  terms  "all  the  rest  and  residue  of  the  prop- 
erty and  estate,  real,  personal,  and  mixed,  wherever  situated,  of  which" 
the  testatrix  might  die  possessed,  to  the  First  Congregational  Church 
of  Bristol. 

It  is  contended  in  behalf  of  the  First  Congregational  Church  of 
Bristol  that  the  effect  of  the  provisions  of  the  will  under  consideration 
was  to  give  to  the  daughters  named  an  estate  in  fee  simple  in  the 
lands  devised,  in  accordance  with  the  rule  in  Shelley's  Case;  or  that, 
in  case  the  devise  over  is  held'  not  to  fall  within  that  rule,  the  daughters 
took  an  estate  tail  in  the  property.  We  do  not  think  that  the  rule  in 
Shelley's  Case  applies.  That  rule,  as  stated  by  Mr.  Preston  in  his 
treatise  on  Estates,  (see  2  Bouv.  Law  Diet.  tit.  "Shelley's  Case,  Rule 
in,")  is  as  follows :  "When  a  person  takes  an  estate  of  freehold,  legal 
or  equitable,  under  a  deed,  will,  or  other  writing,  and  in  the  same  in- 
strument there  is  a  limitation  by  way  of  remainder,  either  with  or 

5  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  135. 


270  CONSTRUCTION VESTED  AND  CONTINGENT  INTERESTS 

without  the  interposition  of  another  estate,  of  the  same  legal  or  equi- 
table quality,  to  his  heirs,  or  the  heirs  of  his  body,  as  a  class  of  persons 
to  take  in  succession,  from  generation  to  generation,  the  limitation  to 
the  heirs  entitles  the  ancestor  to  the  whole  estate." 

The  provisions  of  the  will  before  us  do  not  conform  to  the  rule  thus 
stated.  In  the  first  place,  the  devises  to  the  daughters' are  in  form  ab- 
solute fees,  after  which  no  limitation  by  way  of  remainder  can  be 
made.  In  the  second  place,  the  limitation  over  is  not  to  the  heirs  of 
the  daughters,  but  to  the  heirs  of  the  testator.  The  mere  accident  that 
the  heirs  of  the  testator  happen  to  be  in  this  case  the  same  persons  as 
the  heirs  of  the  daughters  does  not  affect  the  application  of  the  rule. 
Nor  do  we  think  that  the  devises  can  be  construed  to  have  created  es- 
tates tail  in  the  daughters.  If  they  had  been  simply  devises  in  fee  to 
the  daughters,  and,  in  case  they  should  die  without  issue,  with  remain- 
der to  the  heirs  of  the  testator,  and  the  terms  of  the  devises  were  to  be 
strictly  followed,  the  daughters  would  have  taken  estates  in  fee  simple, 
which  would  have  rendered  the  limitations  over  to  the  heirs  of  the  tes- 
tator void  as  remainders,  under  the  rule  that  a  remainder  cannot  be 
created  after  an  estate  in  fee  simple.  The  limitations  over  would  also 
have  been  void  as  executory  devises,  because  they  would  have  violated 
the  rule  against  perpetuities,  since  they  would  have  restricted  aliena- 
tion of  the  lands  until  after  an  indefinite  failure  of  issue.  Inasmuch, 
however  as  in  such  devises  an  intention  would  be  shown  by  the  testator 
to  benefit  the  issue  of  the  daughters  as  also  his  own  heirs,  the  courts, 
by  settled  rules  of  construction,  would  have  restricted  the  estates  in 
fee  limited  to  the  daughters  to  estates  tail,  on  which  the  limitations 
over  in  remainder  would  be  good,  the  failure  of  issue  being  the  regular 
limit  of  an  estate  tail;  and  it  would  take  effect  under  the  rule  that, 
whenever  a  limitation  can  take  effect  as  a  remainder,  it  shall  never 
operate  as  an  executory  devise.  The  rule  against  perpetuities  would 
at  the  same  time  be  observed,  because  the  right  to  bar  the  entail  at  com- 
mon law  by  suffering  a  common  recovery,  or  by  a  deed  executed  and 
acknowledged  in  the  manner  prescribed  by  Pub.  St.  R.  I.  c.  172,  §  3, 
or  by  will,  as  provided  by  the  same  section  of  the  statute,  is  an  insepa- 
rable incident  of  an  estate  tail,  and  the  restriction  on  alienation  would 
therefore  be  determinable  at  the  option  of  the  tenant  in  tail. 

The  devises,  however,  are  not  merely  in  fee  to  the  daughters,  and,  in 
case  they  should  die  without  issue,  with  remainders  to  the  heirs  of  the 
testator,  as  in  the  case  we  have  supposed,  but  the  provisos  on  which  the 
limitations  over  are  to  take  effect  are,  in  case  they  should  die  leaving 
no  surviving  issue,  then  on  their  decease,  in  the  one  case,  and  on  both 
their  decease,  in  the  other,  the  estates  are  to  be  divided  among  the 
testator's  heirs,  etc.  It  is  evident  from  this  language  that  the  testator 
contemplated,  not  a  failure  of  the  issue  of  his  daughters  an  indefinite 
time  after  their  decease,  but  a  failure  occurring  at  a  definite  time,  to 
wit,  on  their  decease ;  these  words  being  used  to  fix  definitely  the  time 


EXECUTORY   DEVI8ES  271 

when  the  limitations  over  are  to  take  effect.  Though,  for  the  reasons 
stated  above,  a  devise  in  fee  will  be  restricted  to  an  estate  tail  by  a 
gift  over  in  case  the  devisee  die  without  issue,  unless  there  is  something 
to  justify  a  different  construction,  yet  when  there  is  anything  in  the 
gift  or  limitation,  or  in  the  context,  to  rebut  this  construction,  and 
show  that  the  testator  meant  a  failure  of  issue  at  a  definite  period,  in- 
stead of  an  indefinite  failure,  it  will  be  rejected,  and  the  limitation 
over  will  be  construed  as  an  executory  devise  in  defeasance  of  a  fee 
simple,  and  not  as  a  remainder  sustained  by  an  estate  tail.  In  re  Swin- 
burne, 16  R.  I.  208,  14  Atl.  850;  Burrough  v.  Foster,  6  R.  I.  534;  Ar- 
nold v.  Brown,  7  R.  I.  188 ;  Arnold  v.  Buffum,  2  Mason,  208,  Fed.  Cas. 
No.  554;  Hall  v.  Chaffee,  14  N.  H.  215 ;  Wilson  v.  Wilson,  46  N.  J.  Eq. 
321,  19  Atl.  132 ;  Den  v.  Snitcher,  14  N.  J.  Law,  53 ;  Langley  v.  Heald, 
7  Watts  &  S.  (Pa.)  96;  Pells  v.  Brown,  3  Cro.  Jac.  590;  Doe  v.  Frost, 
3  Barn.  &  Aid.  546;  Coltsmann  v.  Coltsmann,  L.  R.  3  H.  L.  121. 

We  are  of  the  opinion,  therefore,  that  the  daughters,  Charlotte  and 
Maria,  took,  under  the  second  and  fifth  clauses  of  the  will  of  their 
father,  William  De  Wolf,  estates  in  fee,  defeasible  on  the  death  of  the 
survivor  of  them  in  case  they  should  leave  no  issue  surviving  at  the 
death  of  the  survivor;  that,  Charlotte  having  died  without  issue  in 
1885,  her  undivided  half  of  the  estates  in  suit  passed  under  her  will  to 
the  First  Congregational  Church  of  Bristol;  that,  Maria  having  died 
in  December,  1890,  also  without  issue  surviving  at  her  decease,  both 
her  estate  and  the  estate  taken  by  the  First  Congregational  Church  of 
Bristol  under  the  will  of  Charlotte  were  defeated ;  and  that  the  lands 
thereupon  passed  to  the  heirs  of  William  De  Wolf,  under  the  executory 
devises  contained  in  the  proviso  in  the  second  and  fifth  clauses  of  his 
will. 


272  CONSTRUCTION CONDITIONS 

CONSTRUCTION   (Continued)— CONDITIONS 

I.  Conditions  in  General 

1.  PRECEDENT1 


MERRILL  v.  WISCONSIN  FEMALE  COLLEGE. 

(Supreme  Court  of  Wisconsin,  1889.    74  Wis.  415,  43  N.  W.  104.) 

COLE,  C.  J.  The  particular  clause  in  the  will  of  Mrs.  Downer,  which 
the  executor  asks  the  court  to  construe,  reads  as  follows :  "Item  Ninth. 
I  give  and  bequeath  to  Wisconsin  Female  College,  located  at  Fox 
Lake,  Wis.,  five  thousand  dollars,  ($5,000,)  provided  that  the  trustees 
have  changed  the  name  before  my  decease  to  Downer  College,  in  mem- 
ory of  my  husband." 

What  is  the  meaning  of  this  clause?  The  language  is  so  plain  and 
precise  as  to  hardly  admit  of  discussion.  Five  thousand  dollars  are 
given  on  the  condition,  or  "provided,"  the  trustees  shall  have  changed 
the  name  of  the  institution  before  the  death  of  the  testatrix  to  Downer 
College,  in  memory  of  her  husband.  The  bequest  is  clearly  what  is 
denominated  in  the  books  a  conditional  one,  which  vests  or  takes  ef- 
fect if  a  certain  event  happens,  or  a  specified  thing  is  performed,  in 
the  life-time  of  the  testatrix.  It  is  strictly  and  clearly  a  condition 
precedent,  where  the  event  must  happen  or  be  fulfilled,  or  the  bequest 
will  not  vest.  "A  conditional  bequest  is  where  its  taking  effect  or  con- 
tinuing in  operation  depends  upon  the  happening  or  not  happening  of 
some  uncertain  event.  *  *  *  It  seems  to  be  agreed  that  in  re- 
gard to  all  conditions  whether  in  a  deed  or  will  or  in  simple  contracts, 
where  the  condition  is  in  the  nature  of  a  consideration  for  the  conces- 
sion, its  performance  will  be  regarded  as  intended  to  precede  the  vest- 
ing of  any  right,  and  so  a  condition  precedent."  2  Redf.  Wills,  283. 
Here  the  name  of  the  institution  was  required  to  be  changed  to  "Down- 
er College"  before  the  death  of  the  testatrix  or  the  legacy  would  not 
vest  or  take  effect.  Conditions  are  either  precedent  or  subsequent; 
that  is,  the  performance  of  the  condition  is  required  before  the  estate 
can  vest,  or  the  failure  to  perform  the  condition  will  divest  the  estate. 
The  distinction  between  the  two  classes  of  conditions  is  familiar  to 
the  profession,  and  it  is  unnecessary  to  enlarge  upon  it. 

The  language  of  the  clause  under  consideration  is  so  clear  and  defi- 
nite that  there  is  no  room  to  doubt  as  to  the  intention  of  the  testatrix. 
The  legacy  was  given  in  the  nature  of  a  consideration  for  the  change 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  136,  137. 


CONDITIONS   IN   GENEBAL  273 

of  the  name  of  the  institution  to  "Downer  College"  in  the  life-time  of 
the  testatrix.  True  the  trustees  were  not  informed  that  a  legacy  would 
be  given  the  college  upon  such  a  condition.  The  testatrix  evidently 
desired  if  a  change  in  the  name  was  made  it  should  proceed  from  the 
spontaneous  or  voluntary  action  of  the  trustees,  uninfluenced  by  a 
knowledge  of  such  a  conditional  bequest.  She  undoubtedly  thought 
it  was  due  the  memory  of  Judge  Downer,  who  had  been  such  a  firm 
friend  of  the  institution  in  his  life-time,  and  had  made  such  a  gener- 
ous provision  for  its  support  in  his  will,  that  it  should  bear  his  name. 
But  she  wanted  the  trustees  to  act  in  the  matter  as  their  own  sense  of 
justice  and  propriety  might  dictate,  and  in  grateful  recognition  of  his 
generosity.  This  was  doubtless  the  reason  why  a  knowledge  of  her 
intended  gift  was  not  communicated  to  the  trustees. 

The  evidence  conclusively  shows  that  the  name  was  not  changed 
until  after  the  death  of  Mrs.  Downer;  consequently  the  condition 
was  not  fulfilled,  and  the  legacy  did  not  vest.  It  seems  to  us  that  a 
bare  statement  of  the  facts  is  sufficient  to  win  the  assent  of  every 
mind  to  this  view,  without  further  argument  or  illustration.  Nothing 
short  of  a  complete  legal  change  in  the  name  would  meet  the  require- 
ments of  the  bequest.  This  is  necessarily  implied  from  the  language, 
"provided  that  the  trustees  have  changed  the  name  before  my  decease 
to  Downer  College."  This  language  obviously  imports  a  legal  change 
of  the  name,  a  completed  act,  giving  the  institution  a  new  corporate 
name,  by  which  it  might  sue  and  be  sued,  and  exercise  its  corporate 
rights.  The  performance  of  the  condition  was  not  impossible.  The 
trustees  had  ample  authority  under  the  statute  to  change  the  name  of 
the  college.  Power  is  given  them  in  the  statute  in  express  terms. 
Sections  1774-1791,  Rev.  St.  The  fact  that  the  college  was  incor- 
porated by  a  special  act  of  the  legislature  did  not  limit  or  deprive  the 
trustees  of  the  power  to  make  the  change. 

The  learned  counsel  for  the  appellant  suggests  that  the  legislature 
could  not  confer  upon  a  corporation  organized  under  a  special  charter 
the  authority  to  amend  its  charter,  because  it  would  be  a  delegation 
of  its  legislative  power.  We  fail  to  perceive  any  force  in  the  sugges- 
tion. Corporations  are  the  creatures  of  the  statute,  and  the  legislature 
may  confer  upon  them  such  powers  as  it  deems  proper.  Certainly  we 
perceive  no  constitutional  objection  to  the  legislature  authorizing  an 
existing  corporation  to  change  its  corporate  name ;  but  whether  the 
trustees  could  make  the  change,  or  whether  they  would  have  to  apply 
to  the  legislature  to  make  it,  the  legacy  would  not  vest  unless  the 
change  was  actually  and  legally  made  in  the  life-time  of  Mrs.  Downer. 

This  is  the  condition  upon  which  the  bequest  was  made,  and  no 
subtlety  of  argument  or  ingenuity  in  reasoning  can  do  away  with  the 
condition.  It  is  absolutely  essential  that  it  should  be  performed,  or 
the  bequest  would  not  take  effect.  The  trustees  seemed  to  suppose 
they  had  no  power  to  change  the  name  of  the  college,  but  that  they 
DUNM.CAS.  WILLS — 18 


274  CONSTRUCTION CONDITIONS 

would  have  to  apply  to  the  legislature  to  have  it  made.  They  were 
clearly  mistaken  as  to  their  authority  in  the  matter.  They  took  steps 
to  amend  their  charter,  and  actually  applied  to  the  legislature,  which 
changed  the  name  of  the  college  in  February,  1889.  Chapter  6,  Laws 
1889.  But  this  act  was  not  passed  until  after  Mrs.  Downer's  death. 
Some  considerations  were  urged  upon  us  to  induce  us  to  give  this 
clause  of  the  will  a  liberal  construction.  It  is  said  the  evidence  shows 
that  the  trustees  intended  to  change  the  name  of  the  college,  and  in 
good  faith  took  such  steps  as  they  supposed  would  accomplish  the 
object.  But  it  is  an  admitted  fact  that  no  perfect  legal  change  of  the 
name  was  made  during  the  life-time  of  Mrs.  Downer.  That  fact  is 
decisive  and  absolutely  controlling  in  the  case.  The  will  is  plain  in 
its  terms ;  its  meaning  perfectly  clear  and  definite.  We  have  no  war- 
rant in  law,  no  justification  in  morals,  to  change  the  will  for  the  dead, 
as  we  feel  we  should  do  were  we  to  give  the  clause  in  question  any 
other  construction  than  the  one  we  have  placed  upon  it. 

The  judgment  of  the  superior  court  is  affirmed,  the  taxable  costs 
in  this  court  to  be  paid  out  of  the  estate. 


2.  SUBSEQUENT 


LYNCH  v.  MELTON. 

(Supreme  Court  of  North  Carolina,  1909.     150  N.  C.  595,  64  S.  E.  497,  27 

L.  R.  A.  [N.  S.]  684.) 

CLARK,  C.  J.  By  consent  the  judge  found  the  facts  which  may  be 
succinctly  stated  as  follows:  The  testatrix,  wife  of  J.  D.  Simmons, 
was  childless  and  took  her  orphan  niece,  L.  E.  Melton,  to  live  with 
her  at  the  age  of  four  years  on  the  death  of  the  latter's  mother.  When 
the  child  had  reached  10,  the  testatrix  died,  leaving  a  will  with  the 
following  clause  therein:  "I  give  and  devise  to  my  beloved  husband 
J.  D.  Simmons,  the  tract  of  land  on  which  we  now  reside,  containing 
33  acres  of  land  and  also  all  my  personal  effects  of  whatsoever  char- 
acter, for  his  special  benefit  during  his  natural  life,  then  to  go  to  my 
niece  L.  E.  Melton,  if  anything  left  at  his  death,  provided  she  lives 
with  her  said  uncle  until  she  becomes  free  by  age  or  marriage,  other- 
wise to  go  as  the  law  directs."  After  the  death  of  the  testatrix  the 
little  girl  continued  to  live  with  her  uncle  a  few  months,  when  he 
evinced  symptoms  of  insanity,  and,  being  conscious  of  it,  he  asked 
her  father  to  take  the  child  to  his  home  in  Oklahoma,  which  he 
did.  The  child  was  willing  and  anxious  to  stay  with  her  uncle,  but 
it  was  unsafe  to  remain  and  he  had  decided  to  break  up  his  home. 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  138. 


CONDITIONS   IN   GENERAL  275 

Soon  after  he  was  admitted  to  the  insane  asylum,  and  died  something 
over  two  years  after  the  testatrix. 

A  will  must  be  so  construed  as  to  effectuate  the  evident  intent  of 
the  testator.  Here  the  child  was  evidently  the  object  of  the  testatrix's 
bounty,  and  the  just  construction  of  the  clause  of  the  will  above  quoted 
is  that  she  devised  a  life  estate  in  the  land  to  her  husband  with  a 
vested  remainder  in  fee  to  her  niece,  defeasible  if  she  voluntarily  failed 
to  live  with  her  uncle  until  she  became  married  or  of  age.  Without 
her  fault  and  contrary  to  her  will,  she  was  compelled  to  leave  by  the 
insanity  of  her  uncle,  and  his  determination  to  break  up  his  home,  and 
at  the  uncle's  request  the  child  was  removed  by  her  father  to  his  own 
home.  His  honor  properly  held  that  the  fee  was  vested  in  remainder 
in  L.  E.  Melton  expectant  upon  the  death  of  the  life  tenant,  and  had 
not  been  divested.  The  performance  of  the  condition  having  become 
impossible  without  any  fault  on  the  part  of  the  devisee,  the  condition 
in  the  eye  of  the  law  was  not  broken,  and  there  was  no  defeasance. 
Woods  v.  Woods,  44  N.  C.  290;  Thomas  v.  Howell,  1  Salk.  170;  1 
Inst.  206;  Hammond  v.  Hammond,  55  Md.  575;  Merrill  v.  Emery,  10 
Pick.  (Mass.)  511.  Where  plaintiff,  to  whom  a  tract  of  land  was 
devised  upon  condition  that  he  should  remain  with  the  widow  of  the 
testator  until  her  death,  was  wrongfully  ejected  from  the  land  by  the 
agent  of  the  widow  (who  was  a  devisee  of  the  land  o-f  which  the  plain- 
tiff's was  a  part),  the  plaintiff's  estate  upon  the  widow's  death  cannot 
be  defeated  upon  the  ground  that  the  condition  was-  not-  performed 
by  the  plaintiff's  not  remaining  on  the  plantation  until  the  'widow's 
death.  Harris  v.  Wright,  118  N.  C.  422,  24  S.  E.  751. 

In  Finlay  v.  King,  3  Pet.  346,  7  L.  Ed.  711,  Marshall,  C.  J.,  said: 
"It  was  admitted  in  argument,  and  is  certainly  well  settled,  that  there 
are  no  technical  or  appropriate  words  which  always  determine  whether 
a  devise  be  on  a  condition  precedent  or  subsequent.  The  same  words 
have  been  determined  differently,  and  the  question  is  always  a  ques- 
tion of  intention.  If  the  language  of  the  will  shows  that  the  particular 
clause,  or  if  the  whole  will  shows  that  the  act  on  which  the  estate  de- 
pends must  be  performed  before  the  estate  can  vest,  the  condition  is, 
of  course,  precedent,  and,  unless  it  be  performed,  the  devisee  can  take 
nothing.  If,  on  the  contrary,  the  act  does  not  necessarily  precede  the 
vesting,  and  where  the  estate  had  previously  vested,  it  will  become 
absolute  by  the  death  of  such  person."  Again  in  the  same  case  he 
says :  "Conditions  belong  to  cases  where  all  means  to  accomplish  the 
testator's  purpose  are  in  his  view  and  being;  but  when  subsequent 
events  change  the  existing  state  of  things  so  essentially  as  to  render 
the  performance  impossible,  for  instance,  if  a  devise  be  made  on  con- 
dition that  the  devisee  consent  to  marry  a  particular  person,  and  that 
person  dies,  the  performance  is  rendered  impossible  by  the  happening 
of  an  event  subsequently  which  the  testator  never  contemplated ;  and, 
where  the  estate  had  previously  vested,  it  will  become  absolute  on  the 
death  of  such  person." 


276  CONSTRUCTION CONDITIONS 

The  appellants  rely  upon  Tilley  v.  King,  109  N.  C.  461,  13  S'.  E.  936, 
but  the  facts  in  that  case  are  not  similar  to  this.  There  the  testator 
clearly  intended  to  provide  support  and  attention  for  himself  and  wife 
in  their  declining  years,  and  the  devise  to  his  grandson  was  made 
to  compensate  him  for  his  services  if  he  "stays  with  us  until  after  our 
death  and  takes  care  of  us."  The  devisee  P.  H.  Tilley  voluntarily  left 
the  wife  of  the  testator  about  one  year  after  the  death  of  testator  and 
seven  or  eight  years  before  her  death.  There  was  no  providential  hin- 
drance to  his  compliance  with  the  prescribed  conditions  as  in  the  case 
at  bar. 

The  judgment  below  is  affirmed. 


II.  Particular  Conditions 
1.  CONDITIONS  AFFECTING  MARRIAGE* 


PHILLIPS  v.  FERGUSON. 

(Supreme  Court  of  Appeals  of  Virginia,  1888.     85  Va.  509,  8  S.  E.   241,  1 
L.  R.  A.  837,  17  Am.  St.  Rep.  78.) 

LEWIS,  P.  The  testator,  after  providing  in  his  will  for  his  widow, 
and  making  devises  to  certain  of  his  children,  directed  in  the  fourth 
clause  that  $5,000  be  laid  out  in  land,  to  be  divided  between  six  of 
his  children  therein  mentioned;  and  by  the  residuary  clause  he  di- 
rected the  balance  of  his  estate,  including  the  property  left  to  the  wid- 
ow, (at  her  death,)  to  be  divided  between  all  of  his  children,  of  whom 
there  are  eight.  Then  follows  the  clause  out  of  which  this  controversy 
arises,  and  which  is  as  follows :  "If  either  one  of  my  children  above 
named  in  my  will  should  marry  in  T.  W.  Phillips'  family,  I  only  give 
him  or  her  the  sum  of  three  dollars  to  be  their  part,  and  to  be  all  that 
him  or  her  is  to  receive  under  the  will ;  and  the  foregoing  clause  of 
this  will,  that  leaves  them  anything,  to  be  revoked,  and  all  other  por- 
tions of  this  will  that  provides  for  same  child."  The  will  is  dated  Jan- 
uary 31,  1884,  and  the  testator  died  on  the  3d  of  June  of  the  same  year. 
On  the  llth  of  February  of  the  same  year  Ellen  C.  Ferguson,  one  of 
the  "children  above  named,"  intermarried  with  William  T.  Phillips, 
a  son  of  the  said  T.  W.  Phillips,  who,  at  the  time,  was  living  with  his 
father,  but  was  of  age,  and  doing  business  on  his  own  account,  and 
"in  no  way  dependent  upon  his  father ;"  and  the  question  is  as  to  the 
effect,  under  these  circumstances,  of  the  clause  of  the  will  last  above 
quoted.  The  circuit  court  held  that  the  direction  that  $5,000  be  laid 
out  in  land,  to  be  divided  as  directed,  was  in  effect  a  devise  of  realty, 

»  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  139. 


PARTICULAR   CONDITIONS  277 

and  that  the  said  Ellen  C.  Phillips  was  not  entitled  to  any  estate  or  in- 
terest in  the  realty  devised  by  the  will,  but  that  she  was  entitled  to  the 
legacy  of  three  dollars,  and,  in  addition  thereto,  to  one-eighth  of  the 
residue  of  the  personalty  bequeathed  by  the  residuary  clause,  and  de- 
creed accordingly;  whereupon  Phillips  and  wife,  the  plaintiffs  below, 
appealed. 

1.  It  is  clear,  as  the  circuit  court  held,  that,  for  the  purposes  of  the 
will,  the  money  directed  by  the  fourth  clause  to  be  laid  out  in  land 
must  be  considered,  upon  the  principle  of  equitable  conversion,  as  real 
estate.    The  testator  has  impressed  that  character  upon  it,  and  cujus 
est  dare,  ejus  est  disponere.    Craig  v.  Leslie,  3  Wheat.  563,  4  L.  Ed. 
460;   Pratt  v.  Taliaferro,  3  Leigh,  419;   Effinger  v.  Hall,  81  Va.  94, 
and  cases  cited.     Inasmuch,  however,  as  we  are  also  of  opinion  that 
the  female  appellant  takes  nothing  under  the  will,  (save  the  legacy  of 
three  dollars,)  the  object  of  the  conversion  to  that  extent  fails,  and 
consequently  the  undisposed-of  portion  of  the  fund  directed  to  be  so 
invested  results,  in  its  unconverted  form  as  personalty,  to  the  execu- 
tors for  the  residuary  legatees  other  than  herself.    3  Pom.  Eq.  Jun  § 
1172;    1  Lead.  Cas.  Eq.  (4th  Ed.)   1187,  1202,  notes  to  Ackroyd  v. 
Smithson. 

The  condition  on  which  the  devise  was  made  to  the  children,  of 
which  she  was  apprised  by  the  testator  in  his  life-time,  and  before  her 
marriage,  has  not  been  observed  by  her,  and  its  observance  was  essen- 
tial to  the  vesting  of  any  estate  under  the  will.  The  common  law,  al- 
though it  does  not  allow  a  condition  in  restraint  of  marriage  generally, 
when  annexed  to  a  devise  of  lands  or  of  a  legacy  charged  on  land,  to 
divest  an  estate,  yet,  if  the  condition  be  precedent,  it  must  be  observed, 
no  matter  how  restrictive  of  marriage  it  may  be.  If,  however,  it  be 
subsequent,  then  its  effect  depends  on  whether  it  is  reasonable  or  not. 
In  the  present  case,  the  condition  in  question  is  not  subsequent,  so 
far,  at  least,  as  the  female  appellant  is  concerned.  A  condition  subse- 
quent is  one  the  effect  of  which  is  to  enlarge  or  defeat  an  estate  al- 
ready created.  1  Lomax,  Dig.  262.  But  here,  as  we  have  said,  with- 
out a  compliance  with  the  condition,  no  estate  in  the  land  can  vest  at 
all ;  and,  as  the  prohibited  marriage  occurred  before  the  testator's 
death,  and  therefore  before  any  estate  under  the  will  could  commence, 
it  is  clear  that  no  estate  in  the  land  has  ever  been  vested  in  the  female 
appellant,  or  ever  can  vest  in  her  under  the  will  of  her  father;  and 
hence,  also,  no  question  of  forfeiture  arises  in  the  case,  as  to  which 
much  was  said  in  the  argument  by  counsel  for  appellants. 

2.  With  regard  to  the  personal  property  bequeathed  by  the  residuary 
clause  of  the  will,  somewhat  different  principles,  derived  in  part  from 
the  civil  law,  apply.    As  to  this,  it  is  contended  that  the  interest  of  the 
female  appellant  is  absolute,  because,  as  her  interest  is  not  given  over 
to  some  one  else,  the  condition  in  question  is  only  in  terrorem.    This 
position  would  be  well  taken  if  the  condition  were  subsequent;    for 
the  settled  doctrine,  albeit  there  are  cases  to  the  contrary,  is  that 


278  CONSTRUCTION CONDITIONS 

where  a  personal  legacy  ^is  given  on  a  condition  in  restraint  of  mar- 
riage, and  the  condition  is  not  precedent,  but  subsequent,  and  is  after- 
wards broken,  and  there  is  no  disposition  over,  then  the  condition  is 
construed  as  in  terrorem  merely,  and  a  mere  gift  of  a  residue  is  not 
considered  a  bequest  over.  There  must  be  a  distinct  provision  that  the 
legacy  shall  vest  in  a  third  person,  or  sink  into  the  residue,  on  the 
breach  of  the  condition ;  otherwise  the  legacy  becomes  pure  and  abso- 
lute. If,  however,  the  condition  be  precedent,  and  not  unreasonably 
restrictive  of  marriage,  it  must  be  observed.  1  Story,  Eq.  Jur.  §  290. 
The  system,  as  will  thus  be  seen,  is  somewhat  incongruous;  being, 
as  it  is,  the  result  of  a  blending  of  the  doctrine  of  the  civil  law,  that 
marriage  ought  to  be  free,  with  the  principles  of  the  common  law  al- 
ready adverted  to.  The  law  upon  this  whole  subject  is  well  summa- 
rized in  a  valuable  treatise,  as  follows:  "If  a  condition  [in  restraint 
of  marriage]  is  precedent,  and  annexed  to  a  gift  of  land,  [or  of  any 
interest  arising  out  of  land,]  it  operates  as  at  the  common  law.  When 
broken,  it  prevents  the  estate  from  vesting,  whatever  be  its  nature. 
When  annexed  to  a  gift  of  personal  property,  if  general  or  unreason- 
able, it  is  wholly  void,  and  the  gift  takes  effect;  if  partial  and  reason- 
able, it  is  operative.  When  a  condition  is  subsequent,  and  annexed  to 
a  gift  of  land,  [or  of  any  interest  arising  out  of  land,]  if  general,  it 
is  void,  and,  although  broken,  the  estate  of  the  donee  continues ;  if 
partial  and  reasonable,  it  is  operative,  and  on  its  breach  the  estate  of 
the  donee  is  defeated.  When  a  subsequent  condition  is  annexed  to  a 
gift  of  personal  property,  if  general,  it  is  void ;  if  partial  and  reason- 
able, and  there  is  a  gift  over,  it  is  operative,  and  upon  its  breach  the 
interest  of  the  first  donee  ceases,  and  the  gift  over  takes  effect,  but,  if 
there  is  no  gift  over,  then  the  condition  is  said  to  be  in  terrorem  mere- 
ly, and  is  inoperative."  2  Pom.  Eq.  Jur.  §  933.  See,  also,  Maddox 
v.  Maddox,  11  Grat.  804;  2  Lead.  Cas.  Eq.  144.  Notes  to  Scott  v. 
Tyler;  1  Story,  Eq.  Jur.  §  289;  2  Lomax,  Ex'rs,  79;  2  Minor,  Inst. 
245  et  seq. 

The  question,  therefore,  arises  in  the  present  case,  is  the  condition 
in  question  reasonable?  The  appellants  deny  that  it  is,  insisting  that 
it  is  unreasonably  restrictive  of  marriage,  and  therefore  void  upon 
grounds  of  public  policy.  But  no  authority  has  been  cited  which  goes 
to  the  extent  of  holding  that  such  a  condition  is  invalid,  and  doubtless 
none  can  be  found.  No  inflexible  rule  on  the  subject  is  deducible  from 
the  cases,  many  of  which  are  irreconcilable.  The  law,  however,  as  we 
have  seen,  recognizes  as  valid  conditions  in  restraint  of  marriage  which 
are  just,  fair,  and  reasonable,  and  what  is  such  a  condition  must  be 
determined  upon  the  circumstances  of  each  particular  case.  A  condi- 
tion not  to  marry  a  Scotchman,  or  a  Papist,  or  that  the  widow  of  the 
testator  shall  not  marry  again,  has  been  held  valid ;  and  no  reason  is 
perceived  why,  ordinarily,  a  prohibition  to  marry  into  a  particular  fam- 
ily is  not  equally  good ;  certainly  when,  as  is  the  case  here,  the  word 
"family"  is  used  in  its  primary  and  restricted  sense.  It  is  not  a  tech- 


PARTICULAR   CONDITIONS  279 

nical  word,  and,  being  of  flexible  meaning,  it  must  be  construed  ac- 
cording to  the  context  of  the  will.  In  one  sense  it  means  the  whole 
household,  including  servants,  and  even  boarders  and  lodgers ;  in  an- 
other, it  means  all  the  relations  who  descend  from  a  common  ancestor. 
Its  primary  meaning,  however,  is  "children,"  and  so  it  must  be  con- 
strued in  all  cases,  unless  the  context  shows  that  it  was  used  in  a  dif- 
ferent sense.  An  authority  upon  this  point  is  the  case  of  Pigg  v. 
Clarke,  3  Ch.  Div.  672,  in  which  the  master  of  rolls,  in  delivering  judg- 
ment, said:  "Every  word  which  has  more  than  one  meaning  has  a 
primary  meaning;  and,  if  it  has  a  primary  meaning,  you  want  a  con- 
text to  find  another.  What,  then,  is  the  primary  meaning  of  'family'  ? 
It  is  'children.'  That  is  clear,  upon  the  authorities  which  have  been 
cited;  and,  independently  of  them,  I  should  have  come  to  the  same 
conclusion."  So  in  Hill  v.  Bowman,  7  Leigh,  650,  a  trust  for  the 
purpose  of  aiding  any  of  the  members  of  the  testator's  family  was 
held  sufficiently  certain,  and  sustained  accordingly.  See,  also,  2  Jarm. 
Wills,  90  et  seq. 

It  is  also  clear  that  parol  evidence  was  admissible  in  the  present  case 
to  show  who  the  individual  was  to  whom  the  testator  referred  as  T. 
W.  Phillips ;  what  family  he  had,  and  the  relations  existing  between 
him  and  the  testator.  Such  evidence  is  admissible  to  enable  the  judi- 
cial expositor  of  the  will,  as  was  said  in  Hatcher  v.  Hatcher,  80  Va. 
169,  to  place  himself,  figuratively  speaking,  in  the  very  shoes  of  the 
testator,  and,  in  the  light  of  all  the  surrounding  circumstances,  to  as- 
certain his  meaning.  "Thus,"  says  Greenleaf,  "if  the  language  of  the 
instrument  is  applicable  to  several  persons,  to  several  parcels  of  land, 
etc.,  or  if  in  a  will,  the  words  'child,'  'children,'  'family,'  etc.,  are  em- 
ployed, in  all  these  and  the  like  cases  parol  evidence  is  admissible  of 
any  extrinsic  circumstances  tending  to  show  what  person  or  persons 
or  what  things  were  intended  by  the  party,  or  to  ascertain  his  meaning 
in  any  other  respect;  and  this,  without  any  infringement  of  the  rule, 
which  only  excludes  parol  evidence  of  other  language,  declaring  his 
meaning,  than  that  which  is  contained  in  the  instrument  itself."  1 
Greenl.  Ev.  §§  288,  289;  Senger  v.  Senger's  Ex'r,  81  Va.  687;  Gray- 
don's  Ex'rs  v.  Graydon,  23  N.  J.  Eq.  229 ;  Mann  v.  Mann's  Ex'rs,  1 
Johns.  Ch.  (N.  Y.)  231. 

With  the  aid  of  such  extrinsic  circumstances,  in  construing  the  will 
before  us,  there  can  be  no  doubt  as  to  the  testator's  meaning.  It  ap- 
pears that  for  many  years  before  his  death  he  had  been  at  enmity  with 
the  said  T.  W.  Phillips,  who  lived  in  his  neighborhood,  and  for  this 
reason  imposed  in  his  will  the  condition  above  mentioned.  The  will 
was  executed  soon  after  his  consent  to  the  marriage  of  his  daughter, 
the  female  appellant,  with  the  said  William  T.  Phillips,  had  been 
sought  in  vain,  and  of  all  which  she  was  informed  at  the  time.  But, 
in  the  language  of  the  record,  ."she  deliberately  chose  to  defy  her 
father's  anger,  and  stick  to  her  lover,"  and  she  must  now  bear  the 
consequences  of  her  choice.  Nor  is  the  case  affected  by  the  fact  that 


280  CONSTRUCTION CONDITIONS 

when  the  marriage  occurred  the  male  appellant  was  over  the  age  of  21 
years,  and  independent  of  his  father ;  as  the  fact  does  not  at  all  change 
the  family  relations  between  the  parties,  within  the  meaning  of  the 
will. 

It  need  only  be  added  that  it  was  competent  for  the  testator  to  make 
the  condition  operative  as  of  the  date  of  the  will,  and  that  such  was 
his  intention  is  apparent  from  the  will  itself.  The  provision  is  that, 
in  the  event  of  a  prohibited  marriage,  the  will,  as  to  the  child  or  chil- 
dren so  offending,  shall  be  deemed  revoked.  Technically  speaking,  a 
will  can  be  revoked  only  in  the  life-time  of  the  testator.  It  is  evident, 
however,  that  the  provision  above  mentioned  was  intended  to  operate 
as  well  after  as  before  the  testator's  death,  and  hence  it  must  be  so 
construed.  Code,  §  2521 ;  Thorndike  v.  Reynolds,  22  Grat.  21. 

The  result  is  that  the  decree,  as  respects  the  personalty  bequeathed 
by  the  residuary  clause  of  the  will,  is,  as  the  appellees  insist,  erroneous. 
It  will  therefore  be  reversed  in  this  particular,  and  in  all  other  re- 
spects affirmed.  Reversed  in  part,  and  affirmed  in  part. 


2.  CONDITIONS  AFFECTING  POWER  OF  ALIENATION* 


ZILLMER  v.  LANDGUTH. 

(Supreme  Court  of  Wisconsin,  1896.     94  Wis.  607,  69  N.  W.  568.) 

Action  by  Mary  Zillmer  against  John  Landguth,  executor,  etc.,  and 
others,  for  a  construction  of  the  will  of  Lizzie  Landguth.  From  a  de- 
cree for  defendants,  plaintiff  appeals.  Affirmed. 

This  is  an  action  for  the  construction  of  a  will.  The  facts  were  not 
in  dispute.  Andrew  Landguth,  a  widower,  died  in  Milwaukee,  Decem- 
ber 1,  1880,  leaving  two  daughters  as  his  sole  heirs,  Mary  (the  plaintiff) 
and  Lizzie,  aged,  respectively,  14  and  12  years,  and  his  estate  consisted 
of  a  homestead  in  Milwaukee.  He  left  a  will,  which  was  afterwards 
duly  probated,  and  which,  omitting  formal  parts,  was  as  follows:  "I 
do  hereby  give,  devise,  and  bequeath  unto  my  children,  Mary  and  Eliza- 
beth, all  of  my  property,  of  whatsoever  kind  and  description,  both  real 
and  personal  and  mixed,  wheresoever  the  same  may  be  situated;  said 
property,  and  the  whole  thereof,  to  be  divided  equally  between  my  said 
children,  Mary  and  Elizabeth,  share  and  share  alike,  upon  the  express 
condition  that  they  shall  not  have  the  right  to  dispose  of  said  property, 
or  any  part  thereof,  until  the  oldest  of  my  said  children  becomes  of  the 
age  of  twenty-five  years;  my  said  children,  Mary  and  Elizabeth,  to> 
hold  said  property  subject  to  such  condition,  unto  themselves,  their  heirs 
and  assigns,  forever."  His  estate  was  duly  administered,  and  on  the 

<  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  139. 


PARTICULAR   CONDITIONS  281 

8th  of  December,  1882,  a  final  decree  was  rendered  by  the  county  court 
of  Milwaukee  county,  settling  the  estate,  and  adjudging  that  the  real 
estate  of  the  deceased  be  and  was  thereby  "assigned  and  transferred  to 
Mary  Landguth.  and  Elizabeth  Landguth,  the  heirs  at  law  of  said  de- 
ceased, in  common  and  undivided."  No  appeal  was  ever  taken  from 
this  decree. 

Elizabeth  or  Lizzie  Landguth  became  of  age  in  1889,  and  thereafter, 
and  on  the  27th  of  September  of  that  year,  died,  leaving  a  will,  by 
which  she  devised  all  her  property,  including  her  undivided  one-half  of 
the  estate  of  her  father,  to  the  defendants.  At  the  time  of  the  death  of 
Lizzie,  Mary  had  not  reached  the  age  of  25  years,  but  reached  that  age 
before  the  commencement  of  this  action.  Lizzie's  will  was  duly  pro- 
bated, and  thereafter  this  action  was  begun ;  the  plaintiff  claiming  that 
Lizzie  had  no  power  to  devise  the  property  before  Mary  had  arrived  at 
the  age  of  25  years,  and  consequently  that  Lizzie's  share  vested  in 
Mary,  as  her  heir  at  law,  immediately  upon  Lizzie's  death.  The  de- 
fendants claimed  that  the  condition  against  alienation  in  Andrew  Land- 
guth's  will  was  void,  and  that  Lizzie  took  a  fee  simple,  and  consequently 
could  dispose  of  it  by  will.  The  circuit  court  held  the  condition  void, 
and  the  plaintiff  appealed. 

WINSLOW,  J.  (after  stating  the  facts).  Under  the  will  before  us, 
an  estate  in  fee  simple  was  devised  to  the  two  daughters  in  undivided 
moieties,  by  apt  and  technical  words,  with  a  condition  annexed  to  the 
effect  that  the  devisees  should  not  convey  the  same ;  or,  in  other  words, 
that  all  power  of  alienation  should  be  absolutely  suspended  for  a  fixed 
period.  We  regard  this  condition  as  void,  because  absolutely  repugnant 
to  the  estate  granted.  It  now  seems  well  settled  that,  when  a  convey- 
ance or  devise  is  made  in  fee,  a  condition  attempted  to  be  annexed 
thereto  to  the  effect  that  the  purchaser  or  devisee  shall  not  for  any 
period  of  time  convey  or  alien  the  estate  is  void  for  repugnancy.  Pot- 
ter v.  Couch,  141  U.  S.  296,  11  Sup.  Ct.  1005,  35  L.  Ed.  721 ;  Mandle- 
baum  v.  McDonell,  29  Mich.  78,  18  Am.  Rep.  61 ;  Allen  v.  Craft,  109 
Ind.  476,  9  N.  E.  919,  58  Am.  .Rep.  425 ;  Conger  v.  Lowe,  124  Ind. 
368,  24  N.  E.  889,  9  L.  R.  A.  165 ;  Todd  v.  Sawyer,  147  Mass.  570,  17 
N.  E.  527;  De  Peyster  v.  Michael,  6  N.  Y.  467,  57  Am.  Dec.  470;  Van 
Home  v.  Campbell,  100  N.  Y.  287,  3  N.  E.  316,  771,  53  Am.  Rep.  166; 
Schouler,  Wills,  §  602.  See,  upon  this  subject,  generally,  Saxton  v. 
Webber,  83  Wis.  617,  53  N.  W.  905,  20  L.  R.  A.  509;  Van  Osdell  v. 
Champion,  89  Wis.  661,  62  N.  W.  539,  27  L.  R.  A.  773,  46  Am.  St. 
Rep.  864.  The  daughter  Lizzie,  therefore,  took  a  fee-simple  estate,  and 
could  lawfully  devise  the  same.  Judgment  affirmed. 


282  CONSTRUCTION CONDITIONS 


3.  CONDITIONS  AFFECTING  RIGHT  TO  CONTEST 


In  re  MILLER'S  ESTATE. 

(Supreme  Court  of  California,  1909.    156  Cal.  119,  103  Pac.  842,  23  L.  R.  A. 

[N.  S.]  868.) 

ANGELLOTTI,  J.  This  is  an  appeal  by  Delia  F.  Miller  from  so  much 
of  the  decree  of  final  distribution  in  the  matter  of  the  estate  of  deceased 
as  denies  her  the  right  to  receive  a  bequest  of  $1,500,  given  her  by  the 
terms  of  his  last  will.  The  will  of  deceased,  executed  the  day  before 
his  death,  disposed  of  his  estate,  which  was  apparently  his  separate 
property,  as  follows : 

"I  give  and  bequeath  to  my  wife,  Mrs.  Delia  F.  Miller,  the  sum  of 
fifteen  hundred  ($1,500.00)  dollars. 

"Second.  I  give,  bequeath  and  devise  to  my  adopted  daughter,  Mrs. 
Florence  M.  Stevenson,  of  Los  Angeles,  Cal.,  all  the  rest,  residue  and 
remainder  of  my  estate,  both  personal  and  real  property  and  wherever 
situated. 

"Third.  I  further  provide  that,  in  case  any  devisee  or  legatee  under 
this  will  make  any  contest  of  this  will,  then  the  share  herein  provided 
for  any  such  legatee  or  devisee  shall  not  be  paid,  but  the  same  shall  be 
forfeited  and  passed  to  the  others  under  this  will." 

When  the  will  was  offered  for  probate,  said  Delia  F.  Miller  insti- 
tuted a  contest  thereto  on  the  grounds  of  incompetency  to  make  a  will 
and  undue  influence  alleged  to  have  been  exercised  by  Florence  M. 
Stevenson.  An  answer  to  her  opposition  to  the  probate  was  filed,  and 
the  issues  made  were  tried  by  the  court;  a  jury  having  been  waived. 
The  court  found  against  the  allegations  of  Mrs.  Miller,  and  admitted 
the  will  to  probate.  No  appeal  was  ever  taken  from  the  judgment  of 
the  court  in  the  matter  of  the  contest,  and  such  judgment  became  final 
prior  to  the  application  for  distribution.  When  the  estate  was  ready 
for  distribution,  Florence  M.  Stevenson  presented  her  petition,  asking 
that  the  whole  of  said  estate  be  distributed  to  her,  claiming  that  by  rea- 
son of  the  contest  of  the  will  made  by  Mrs.  Miller  the  latter  had  for- 
feited all  rights  under  the  same  and  that  she  had  become  entitled  to 
receive  Mrs.  Miller's  share  as  well  as  her  own.  Mrs.  Miller  also  filed 
her  petition,  alleging  that  she  had  made  the  contest  believing  and  hav- 
ing good  reason  to  believe  that  the  will  was  invalid  on  the  grounds 
stated  in  her  opposition.  The  trial  court  found  that  at  the  time  of  the 
contest  there  was  probable  cause  for  the  same  on  the  ground  of  undue 
influence,  but  no  probable  cause  for  a  contest  on  the  ground  of  incom- 
petency. It  concluded  that  by  reason  of  the  contest  Mrs.  Miller  had  f  or- 

6  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  139. 


PARTICULAR   CONDITIONS  283 

feited  the  legacy  of  $1,500  given  her  by  the  will,  and  distributed  all  of 
the  estate  to  Florence  M.  Stevenson,  the  other  beneficiary  under  the 
will. 

The  contest  provision  of  the  will  is  clear  and  unambiguous  in  its 
terms,  and  it  cannot  be  disputed  that  Mrs.  Miller,  by  reason  of  the 
facts  hereinbefore  set  forth,  has  lost  her  right  to  receive  the  legacy 
given  her  by  the  will,  if  such  provision  is  valid  and  is  to  be  enforced 
according  to  its  terms.  The  question  of  the  validity  of  a  condition 
against  contests  contained  in  a  will  is  not  now  an  open  one  in  this  state. 
In  the  recent  case  of  Estate  of  Kite  (S.  F.  No.  5,046)  155  Cal.  436,  101 
Pac.  443,  21  L.  R.  A.  (N.  S.)  953,  17  Ann.  Cas.  993,  this  question  was 
presented,  and  the  court  held,  following  the  principles  enunciated  in  the 
Matter  of  Garcelon's  Estate,  104  Cal.  570,  590,  38  Pac.  414,  32  L.  R. 
A.  595,  43  Am.  St.  Rep.  134,  that  such  a  condition  is  not  against  public 
policy.  This  ruling  was  in  accord  with  what  is  now  the  universally 
accepted  doctrine.  If  it  be  not  against  public  policy,  we  know  of  no 
reason  why  it  must  not  be  enforced  according  to  its  terms.  A  testator 
has  the  lawful  right  to  dispose  of  his  property  upon  whatever  condition 
he  desires,  as  long  as  the  condition  is  not  prohibited  by  some  law  or 
opposed  to  public  policy,  such  as  conditions  in  restraint  of  marriage  or 
of  lawful  trade,  "and  when  a  testator  declares  in  his  will  that  his  sev- 
eral bequests  are  made  upon  the  condition  that  the  legatees  acquiesce 
in  the  provisions  of  his  will,  the  courts  rightly  hold  that  no  legatee 
shall  without  compliance  with  that  condition  receive  his  bounty,  or  be 
put  in  a  position  to  use  it  in  the  effort  to  thwart  his  expressed  purpose." 
Smithsonian  Institution  v.  Meech,  169  U.  S.  398,  415,  18  Sup.  Ct.  396, 
42  L.  Ed.  793. 

Appellant's  principal  contention  is  that  there  was  no  forfeiture  in 
this  case  for  the  reason  that  she  had  probable  ground  for  contest.  A 
similar  question  was  presented  by  the  briefs  in  Estate  of  Hite,  supra, 
but  was  there  dismissed  by  the  court  without  discussion.  No  such  ex- 
ception is  stated  in  the  contest  provision  contained  in  the  will,  and  we 
know  of  no  principle  that  authorizes  us  to  declare  it.  To  so  do  would 
be  to  substitute  our  own  views  for  a  clearly  expressed  intent  of  the 
testator  to  the  contrary.  We  are  aware  that  some  text-writers  have 
expressed  views  tending  to  support  appellant's  contention  in  this  behalf, 
and  that  it  is  the  rule  adopted  in  Pennsylvania  (see  Estate  of  Friend, 
209  Pa.  442,  58  Atl.  853,  68  L.  R.  A.  447) ;  but  we  cannot  perceive  any 
proper  basis  upon  which  to  rest  such  a  conclusion.  Like  the  doctrine 
accepted  in  many  decisions  to  the  effect  that  no  forfeiture  of  the  legacy 
results  under  such  a  provision  when  there  is  no  gift  over  of  the  legacy 
in  the  event  of  a  contest,  although  a  forfeiture  of  land  devised  will 
result  under  such  circumstances  without  a  specific  devise  over,  a  doc- 
trine repudiated  by  us  in  Estate  of  Hite,  supra,  it  is  a  mere  attempt  at 
an  artificial  distinction  to  avoid  the  force  of  a  plain  and  unambiguous 
condition  against  contests.  See  Hoit  v.  Hoit,  42  N.  J.  Eq.  388,  7  Atl. 
856,  59  Am.  Rep.  43.  See,  also,  Bradford  v.  Bradford,  19  Ohio  St. 


284  CONSTRUCTION CONDITIONS 

546,  2  Am.  Rep.  419.  This  point  was  expressly  made  in  the  Matter  of 
Garcelon,  supra,  and  was  disposed  of  in  the  opinion  by  a  statement  to 
the  effect  that  the  views  set  forth  were  really  conclusive  of  every  ques- 
tion discussed  by  counsel.  This,  we  think,  was  necessarily  so.  If  the 
forfeiture  provision  as  plainly  and  unambiguously  written  is  not  against 
public  policy,  it  must  be  enforced  as  written. 

The  portion  of  the  decree  of  distribution  appealed  from  must  be  af- 
firmed, and  it  is  so  ordered. 


CONSTRUCTION TESTAMENTARY   TRUSTS  AND   POWERS  285 


CONSTRUCTION   (Continued)— TESTAMENTARY  TRUSTS 

AND  POWERS 

I.  Precatory  Words  as  Creating  a  Trust* 


PHILLIPS  v.  PHILLIPS.  , 

(Court  of  Appeals  of  New  York,  1889.    112  N.  Y.  197,  19  N.  E.  411,  8  Am.  St. 

Rep.  737.) 

Action  by  Mary  B.  Phillips,  as  executrix  of  the  last  will  and  testa- 
ment of  Lewis  S.  Phillips,  deceased,  against  Edwin  W.  Phillips,  to 
construe  said  will.  Defendant  appeals  from  a  judgment  of  the  general 
term,  affirming  a  judgment  theretofore  entered  on  the  decision  of 
Williams,  J.,  after  a  trial  at  special  term.  Defendant  having  died 
since  said  judgment,  his  executors,  Albert  C.  Phillips  and  Frederick  A. 
Lyman,  are  substituted. 

FINCH,  J.  The  will  to  be  construed  was  written  by  the  testator 
himself,  and,  while  extremely  brief  and  simple,  presents  a  problem 
not  altogether  easy  of  solution. 

Its  terms  give  to  the  testator's  wife  the  whole  of  his  property,  real 
and  personal,  name  her  as  executrix,  and  then  proceed  as  follows :  "If 
she  find  it  always  convenient  to  pay  my  sister  Caroline  Buck  the  sum 
of  three  hundred  dollars  a  year,  and  also  to  give  my  brother  Edwin  W. 
during  his  life  the  interest  on  ten  thousand  dollars,  (or  seven  hundred 
dollars  per  year,)  I  wish  it  to  be  done."  The  widow  has  paid  the  an- 
nuity to  the  sister  regularly,  but  that  to  the  brother  for  a  single  year 
only.  During  the  years  succeeding  no  payment  was  made,  and  this  ac- 
tion is  brought  by  the  executrix  for  a  construction  of  the  will  and  to 
determine  whether  she  is  bound  to  make  the  payments  withheld.  It 
is  admitted  by  formal  stipulation  that  the  contingency  described  in  the 
will  has  in  fact  happened  during  the  three  years  after  1883,  and  that 
the  financial  situation  of  the  widow  during  the  years  of  her  refusal 
was  such  that  it  was  entirely  convenient  for  her  to  have  paid  the  dis- 
puted allowance,  and  that  she  refused  payment,  not  on  that  account, 
but  from  motives  of  her  own,  with  which  she  claims  the  courts  have  no 
concern,  and  about  which  they  are  not  at  liberty  to  inquire.  The  gen- 
eral term  has  sustained  her  contention  upon  an  opinion  of  the  trial 
judge,  very  patiently  and  carefully  prepared,  and  from  which  we  de- 
part only  upon  convictions  that  we  are  unable  to  resist. 

The  real  intention  of  the  testator  was  one  of  two  things :  He  meant 
to  make  the  annuities  to  his  brother  and  sister  dependent  upon  the  ex- 

i  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  140. 


286  CONSTRUCTION TESTAMENTARY   TRUSTS  AND   POWERS 

istence  of  a  specific  fact,  or  upon  the  choice  and  will  of  his  devisee. 
If  they  rest  upon  the  former,  they  become  a  gift  from  him ;  if  upon 
the  latter,  they  have  no  existence  outside  of  the  choice  of  the  widow. 
The  substantial  argument  in  her  behalf  is  that  a  devise  and  bequest  of 
the  whole  property,  sufficient  in  its  terms  to  carry  the  absolute  owner- 
ship, will  not  be  cut  down  by  a  later  provision,  unless  that  is  clear  and 
definite,  and  manifests  such  purpose  and  intention;  that  the  words, 
"I  wish  it  to  be  done,"  are  not  a  direction  or  command,  but  the  mere 
expression  of  a  desire  intended  to  influence,  though  not  to  control,  the 
action  of  the  wife  in  dealing  with  what  is  absolutely  hers.  The  whole 
strength  of  this  argument  lies  in  the  use  of  the  word  "wish"  by  the 
testator.  It  is  claimed  to  be  not  sufficiently  imperative  or  unequivocal 
to  master  the  discretion  involved  in  the  absolute  ownership  previously 
given,  and  to  rise  only  to  the  level  of  a  request  or  suggestion.  But  the 
word  "wish"  used  by  a  testator  is  often  equivalent  to  a  command.  If 
in  this  will  he  had  said,  "I  wish  all  my  property  to  go  to  my  wife,"  and, 
naming  her  as  executrix,  had  ended  his  will,  neither  she  nor  we  would 
have  questioned  that  the  devise  was  effectual.  We  gave  that  force  to 
the  word  in  a  case  involving  other  circumstances  which  left  little  room 
for  doubt.  Bliven  v.  Seymour,  88  N.  Y.  469.  It  is  true  that  in  both 
the  supposed  and  the  decided  case  no  other  meaning  could  be  given  to 
the  word  "wish"  than  that  of  "will"  or  "direct,"  while  here  the  nar- 
rower and  less  imperative  interpretation  is  possible ;  but  that  fact  only 
makes  more  difficult  the  duty  of  determining  in  which  sense  the  word 
was  employed  in  the  will  before  us,  and  of  ascertaining  the  purpose 
and  intent  of  the  testator.  He  left  no  children.  His  duty,  as  it  is  evi- 
dent he  understood  it,  was  first  and  primarily  to  his  wife,  and  next  to 
his  sister  and  brother.  He  left  an  estate  worth  $100,000,  and  knew 
that  his  wife  possessed  in  her  own  right  $40,000  more.  The  primary 
duty  to  his  wife  he  met  by  giving  to  her  all  his  property.  The  duty  to 
those  of  his  own  blood  he  performed  either  by  a  bequest  of  the  an- 
nuities to  them  charged  upon  the  gift  to  his  wife  so  long  as  that  charge 
should  prove  no  inconvenience  to  her,  or  by  leaving  those  annuities 
wholly  to  her  discretion  himself,  merely  seeking  to  influence,  but  not 
to  control,  her  choice.  And  so  we  are  to  ascertain,  if  we  can,  which 
is  the  truth,  or  that  there  is  such  doubt  as  to  make  the  general  devise 
conclusive. 

One  suggestion  made  on  behalf  of  the  appellants  is  that  the  framing 
of  the  condition  or  contingency  shows  that  the  provision  for  the 
brother  and  sister  was  not  meant  to  be  dependent  upon  the  absolute 
and  uncontrolled  choice  of  the  wife.  If  that  had  been  testator's  pur- 
pose, the  condition  interposed  was  both  needless  and  misleading. 
Without  it  she  would  be  left  to  give  the  allowance  or  not  as  she  pleas- 
ed, and  could  suffer  no  inconvenience  at  the  hands  of  the  testator. 
But  with  it  the  inference  is  that  the  contingency  provided  for  was  the 
only  one  intended  to  excuse  payment.  That  contingency  was  an  actual 
fact,  to  happen  or  not  to  happen  along  the  line  of  the  future,  and  inde- 


PRECATORY   WORDS    AS   CREATING   A   TRUST  287 

pendent  of  the  mere  volition  or  choice  of  the  general  devise.  "If  she 
finds  it  always  convenient"  are  the  words.  "If  she  finds  it;"  that  is, 
if  experience  shows  it ;  if  the  facts  at  the  time  of  payment  prove  to  be 
such;  if  her  financial  condition  as  it  shall  then  exist  enables  her  to 
pay  easily.  The  expression  contemplates,  not  her  choice  or  preference, 
but  her  pecuniary  situation  after  the  experience  or  management  of  one 
or  more  years,  and  it  indicates  his  purpose  to  have  been  to  charge  the 
annuities  upon  the  sweeping  gift  to  his  wife,  provided,  and  provided 
only,  that  in  her  experience  of  the  future  it  should  turn  out  that  the 
payment  of  those  charges  would  occasion  her  no  inconvenience.  "If 
she  finds  it  always  convenient;"  that  is,  on  each  occasion, — at  the  date 
of  every  payment.  The  use  of  the  word  "always"  implies  a  convic- 
tion in  the  testator's  thought,  which  would  quite  naturally  exist,  that 
in  view  of  the  large  estate  he  had  given  his  wife,  and  her  own  ample 
fortune,  it  would  usually  and  ordinarily,  when  the  time  of  payment 
came,  prove  to  be  easy  and  convenient  for  her  to  spare  the  money  for 
that  purpose,  but  that  such  a  state  of  facts  might  not  always  and  upon 
every  occasion  exist;  that  in  her  management  of  the  property  there 
might  come  misfortune  reducing  or  destroying  income,  or  some  ex- 
ceptional increase  of  expenses  due  to  an  under-estimate  of  incurred 
expenditure,  and,  if  that  happened  at  any  one  or  more  of  the  times  of 
payment,  he  desired  that  not  she,  but  his  sister  and  brother,  should 
bear  the  consequent  inconvenience.  In  these  words  of  the  testator  his 
purpose  and  intention,  I  think,  is  sufficiently  disclosed.  He  did  not 
mean  to  make  the  payment  of  the  annuities  dependent  upon  the  mere 
choice  or  will  of  his  wife,  but  upon  her  ability  to  pay  them  without 
inconvenience  to  herself.  Given  that  ability,  he  says :  "I  wish  it  to 
be  done."  The  words  are  not,  "I  wish  her  to  do  it,"  or  "I  hope  she 
will  feel  it  to  be  her  duty,"  or  "I  trust  she  will  see  the  propriety  of 
such  payment  to  be  made;"  but  "I,  the  testator, — dealing  with  my 
own  bounty  to  her, — I  wish  it  to  be  done;  it  is  my  wish,  not  hers, 
that  I  put  behind  the  annuities."  It  is  observable,  also,  that  in  the  gift 
to  his  wife  he  does  not  add  words  that  could  seem  inconsistent  with 
a  subsequent  charge  upon  it,  as,  "for  her  own  use  and  benefit,"  "or 
to  her  and  her  heirs  forever,"  but  leaves  the  path  to  a  trust  or  a  charge 
unobstructed,  so  far  as  possible. 

It  is  perfectly  well  settled  that  what  are  denominated  "precatory 
words,"  expressive  of  a  wish  or  desire,  may,  in  given  instances,  create 
a  trust  or  impose  a  charge.  Without  a  detailed  consideration  of  the 
cases,  it  is  quite  clear  that,  as  a  general  rule,  they  turn  upon  one  im- 
portant and  vital  inquiry,  and  that  is  whether  the  alleged  bequest  is 
so  definite,  as  to  amount  and  subject-matter,  as  to  be  capable  of  exe- 
cution by  the  court,  or  whether  it  so  depends  upon  the  discretion  of 
the  general  devisee  as  to  be  incapable  of  execution  without  supersed- 
ing that  discretion.  In  the  latter  case  there  can  neither  be  a  trust  nor 
a  charge,  while  in  the  former  there  may  be  and  will  be,  if  such  ap- 
pears to  have  been  the  testamentary  intention.  The  distinction  is 


288  CONSTRUCTION TESTAMENTARY   TRUSTS  AND   POWERS 

clearly  drawn  and  was  acted  upon  in  Lawrence  v.  Cooke,  104  N.  Y. 
632,  11  N.  E.  144.  The  word  there  used  was  "enjoin,"  in  itself  a  more 
imperative  word  than  "wish;"  and  yet  a  trust  or  charge  was  denied 
because  by  the  terms  of  the  command  the  payment  to  the  grand- 
daughter was  placed  wholly  within  the  discretion  of  the  residuary  dev- 
isee, and  could  not  be  touched  by  the  court  without  its  utter  destruc- 
tion. The  provision  to  be  made  was  at  such  times,  in  such  manner, 
and  in  such  amounts  as  the  devisee  should  judge  to  be  expedient,  and 
controlled  only  by  what  her  own  sense  of  justice  and  Christian  duty 
should  dictate.  It  was  added  that,  if  she  had  been  enjoined  to  make 
suitable  provision  out  of  the  residuary  estate,  a  charge  would  have 
been  created;  for  what  would  be  "suitable"  could  be  determined  as 
a  fact,  and  would  be  independent  and  outside  of  the  mere  choice  or 
whim  of  the  devisee.  If  the  word  had  been  "wish"  instead  of  "en- 
join," the  result  could  not  have  been  different  upon  either  branch  of 
the  conclusion.  The  doctrine  is  clearly  and  strongly  stated  in  War- 
ner v.  Bates,  98  Mass.  277,  and  had  an  early  illustration  in  Malim  v. 
Keighley,  2  Ves.  Jr.  532.  I  have  examined  the  cases  in  our  own  court 
prior  to  Lawrence  v.  Cooke,  and,  have  found  in  none  of  them  a  depar- 
ture from  the  doctrine  there  asserted,  or  a  judgment  in  hostility  to  it. 
The  primary  question  in  every  case  is  the  intention  of  the  testator,  and 
whether  in  the  use  of  precatory  words  he  meant  merely  to  advise  or 
influence  the  discretion  of  the  devisee  or  himself  to  control  or  direct 
the  disposition  intended.  In  such  a  case  we  must  look  at  the  whole 
will,  so  far  as  it  bears  upon  the  inquiry,  and  the  use  of  the  words  "I 
wish"  or  "I  desire"  is  by  no  means  conclusive.  They  serve  to  raise 
the  question,  but  not  necessarily  to  decide  it.  We  are  convinced  that 
in  the  present  case  the  testator  meant  to  charge  upon  the  gift  to  the 
wife  the  annuities  to  his  sister  and  brother,  provided  only  that  their 
payment  should  not  occasion  her  inconvenience.  The  legacy  to  the 
brother  should  be  computed  at  $700  per  year. 

The  judgment  should  be  reversed,  and  judgment  rendered  for  the 
defendant  construing  the  will  in  accordance  with  this  opinion,  with 
costs.  All  concur,  except  RUGER,  C.  J.,  not  sitting. 


TRUSTS   NOT  APPEASING   IN   THE   WILL  239 


II.  Trusts  not  Appearing  in  the  Will  * 


BENBROOK  v.  YANCY. 
(Supreme  Court  of  Mississippi,  1910.     96  Miss.  536,  51  South.  461.) 

SMITH,  J.  Mr.  John  Triplett  died  in  December,  1906.  Several 
years  prior  to  his  death  he  determined  to  leave  his  property  at  his 
death  to  the  children  of  his  deceased  brother,  William  Triplett.  As 
one  of  these  children,  a  daughter,  was  of  unsound  mind,  he  decided  to 
give  her  portion  of  the  estate  to  her  two  children,  Leah  *ind  Hugh  Ben- 
brook,  complainants  in  the  court  below  and  appellants  here.  Instead 
of  making  his  will  in  accordance  with  this  determination  on  his  part, 
contrary  to  the  advice  of  the  attorney  who  wrote  his  will,  he  bequeath- 
ed all  of  his  property  to  his  niece,  Mrs.  Mariah  Yancy,  appellee,  and 
one  of  the  children  of  the  said  William  Triplett  stating  that  she  under- 
stood what  he  wanted  done  in  the  matter  and  would  carry  out  his 
wishes.  It  is  clear  from  the  evidence  that  Mrs.  Yancy  understood 
what  her  uncle's  intentions  were,  that  she  agreed  to  divide  the  property 
after  his  death  in  accordance  therewith,  and  that,  had  John  Triplett 
not  so  understood  the  matter,  the  will  in  question  would  not  have 
been  made.  The  bill  filed  in  the  court  below,  among  other  things, 
prayed  that  appellee  be  held  to  be  a  trustee,  holding  the  legal  fitle  to 
said  property  for  the  benefit  of  the  children  of  William  Triplett  and 
for  appellants,  and  for  a  sale  thereof  for  a  division.  From  a  decree 
dismissing  said  bill  this  appeal  is  taken. 

It  is  argued  on  behalf  of  appellee  that  she  was  not  active  in  pre- 
venting the  testator  from  making  provision  in  his  will  for  others,  that 
there  was  no  intention  at  all  on  her  part,  that  at  most  she  is  only  guilty 
of  the  breach  of  an  oral  promise  to  hold  the  property  in  trust,  and  that 
from  a  breach  of  such  promise  no  enforceable  trust  will  arise,  citing 
in  support  thereof  Ragsdale  v.  Ragsdale,  68  Miss.  92,  8  South.  315, 
11  L.  R.  A.  316,  24  Am.  St.  Rep.  256.  But  the  evidence  shows  much 
more  than  the  mere  breach  of  an  oral  promise  on  the  part  of  appellee. 
As  hereinbefore  set  out,  the  conduct  of  appellee  was  "influential  in 
producing  the  result" ;  that  is  the  making  of  the  will,  "but  for  which 
such  result  would  not  have  occurred."  It  is  true  that  in  Ragsdale  v. 
Ragsdale,  supra,  appellant  was  active  in  preventing  a  testator  from 
making  an  intended  provision  for  another,  promising  to  make  such 
provision  himself.  But  the  court  there  held  that  "intercepting  a 
bounty  intended  for  another,  and  diverting  it  to  one's  self,  is  held  to 
be  a  fraud,  from  which  a  trust  arises  by  operation  of  law,  and  not 
within  the  statute  of  frauds  or  wills,  but  expressly  excepted." 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  140. 
DUNM.CAS.WILLS — 19 


290  CONSTRUCTION TESTAMENTARY  TRUSTS  AND  POWERS 

In  order  to  come  within  this  rule,  it  is  not  necessary  for  a  party  to 
actively  intervene.  In  the  language  of  the  court  in  Gilpatrick  v.  Glid- 
den,  81  Me.  151,  16  Atl.  466,  2  L.  R.  A.,  at  page  664,  10  Am.  St.  Rep. 
245 :  "If  either  before  or  after  the  making  of  the  will  the  testator 
makes  known  to  the  devisee  his  desire  that  the  property  shall  be  dis- 
posed of  in  a  certain  legal  manner  other  than  that  mentioned  in  the 
will,  and  that  he  relies  upon  the  devisee  to  carry  it  into  effect,  and  the 
latter,  by  any  words  or  act  calculated  to,  and  which  he  knows  do  in 
fact,  cause  the  testator  to  believe  that  the  devisee  fully  assents  there- 
to, and  in  consequence  thereof  the  devise  is  made,  but  after  the  decease 
of  the  testator  the  devisee  refuses  to  perform  his  agreement,  equity 
will  decree  a  trust,  and  convert  the  devisee  into  a  trustee,  whether, 
when  he  gave  his  assent,  he  intended  a  fraud  or  not ;  the  final  refusal 
having  the  effect  of  consummating  the  fraud." 

The  act  of  appellee  comes  clearly  within  this  rule,  and  a  trust  there- 
fore arises  by  operation  of  law.  The  only  doubt  as  to  whom  the  tes- 
tator intended  as  objects  of  his  bounty  is  whether  all  of  the  children 
of  William  Triplett,  appellants  representing  their  mother,  should  share 
therein,  or  whether  all  except  Charles  Triplett  should  share  therein. 
This  question  can  be  solved  on  the  evidence  as  it  now  stands ;  but,  as 
other  evidence  may  be  introduced  on  another  trial,  we  express  no  opin- 
ion relative  thereto. 

The  objection  made  to  the  admission  of  certain  evidence  introduced 
on  behalf  of  appellants  in  the  court  below  is  not  before  the  court  on 
this  record,  and  we  have  therefore  given  same  no  consideration. 

The  chancellor  was  correct  with  reference  to  the  other  matters  com- 
plained of ;  but  he  erred  in  dismissing  the  bill,  and  not  granting  the 
relief  prayed  for  as  hereinbefore  set  forth.  Reversed  and  remanded. 


III.  Duration  of  Trust 8 


CARPENTER  v.  CARPENTER'S  TRUSTEE. 

(Court  of  Appeals  of  Kentucky,  1905.     119  Ky.  582,  84  S.  W.  737,  68  L.  R.  A. 
637,  115  Am.  St  Rep.  275,  10  Prob.  Rep.  Ann.  82.) 

BARKER,  J.  This  action  involves  a  construction  of  the  following 
item  of  the  will  of  John  B.  Carpenter,  deceased:  "(6)  I  direct  the 
share  of  my  son  E.  A.  Carpenter  to  be  paid  into  the  hands  of  a  trustee 
to  be  appointed  by  the  Hart  county  court,  to  be  used  for  his  benefit 
and  to  keep  him  from  want,  but  that  it  be  not  paid  into  his  hands." 
The  will  of  the  father  was  admitted  to  probate,  and  the  appellee, 
Truax  Sturgeon,  appointed  trustee  by  the  Hart  county  court.  After- 

»  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  140. 


DURATION   OF  TRUST  291 

wards  the  cestui  que  trust  instituted  this  action  in  the  Hart  circuit 
court  against  his  trustee ;  setting  up  in  his  petition  the  foregoing  item 
from  his  father's  will,  and  alleging,  substantially,  that  for  three  or 
four  years  before  his  father's  death  he  (plaintiff)  had  suffered  greatly 
from  paralysis,  and  was  unable  to  labor  for  his  support  and  that  his 
father,  "probably  thinking  or  believing  that  his  mind  was  impaired  or 
would  become  impaired  by  reason  of  the  paralysis,  which  this  plain- 
tiff denies,  and  which  was  a  wrong  conception,  if  it  was  conceived  by 
his  father  that  his  [plaintiff's]  mind  was  impaired  or  would  become 
impaired  by  reason  of  the  severe  stroke  of  paralysis,"  placed  his 
(plaintiff's)  estate  in  trust,  as  shown  in  the  foregoing  item  of  the  will ; 
that  since  his  father's  death  his  health  has  so  improved  as  to  render 
him  physically  able  to  prudently  manage  and  control  his  estate,  which 
is  now  withheld  from  him  by  his  trustee,  Truax  Sturgeon;  and  he 
prays  that  the  trust  be  vacated,  and  the  fund  constituting  it  be  turned 
over  to  his  hands  for  management,  etc.  A  general  demurrer  was  in- 
terposed to  this  petition,  which  was  sustained  by  the  court,  and  the 
appellant,  declining  to  plead  further,  was  dismissed. 

This  action  is  based  upon  the  opinion  of  this  court  in  the  case  of 
Webster  v.  Bush,  Trustee,  39  S.  W.  411,  42  S.  W.  1124,  19  Ky.  Law 
Rep.  565,  which  involved  the  construction  of  a  clause  in  a  will  in  all 
respects  similar  in  principle  to  that  at  bar,  in  which  it  was  held  that, 
where  a  testator  devised  an  estate  in  trust  for  his  daughter,  under  the 
supposition  that  she  was  of  feeble  mind,  the  court  was  authorized, 
upon  an  allegation  that  the  physical  incapacity  had  ceased  to  exist,  to 
try  this  question,  and,  if  it  was  established  by  the  evidence,  to  dis- 
charge the  trust.  In  that  case  Judge  Du  Relle  delivered  a  dissent- 
ing opinion,  which  contains  an  admirable  exposition  of  the  law,  and 
from  which  we  adopt  the  following :  "With  the  wisdom  or  unwisdom 
of  the  clause  above  quoted  from  the  will  this  court  has  nothing  to  do, 
except  in  so  far  as  it  might  shed  light  on  the  intention  of  the  testa- 
tor if  ambiguity  existed.  There  was  no  ambiguity.  The  testator  had 
the  absolute  and  unconditional  right  to  place  upon  the  devise  to  his 
daughter  the  limitations  which  he  imposed,  and  no  court  has  a  right 
to  assign  to  him  a  motive  for  these  limitations,  and,  by  denying  the 
existence  of  a  reason  for  that  motive,  create  a  new  will  for  the  testa- 
tor. To  adjudge  that  a  court,  in  construing  unambiguous  language  in 
a  will,  may  surmise  a  reason  in  the  testator's  mind  for  his  clearly  ex- 
pressed intent,  and  then,  upon  evidence  introduced  by  devisees  deny- 
ing the  existence  of  that  supposititious  fact,  proceed  to  set  aside  the 
plain  expression  of  intent,  is  to  nullify  the  statute  of  wills.  No  trust 
could  then  be  so  carefully  guarded  as  not  to  be  at  the  mercy  of  the 
imagination  of  the  chancellor.  There  can  be  no  doubt  that  this  trust 
comes  within  the  class  which  do  not  vest  a  legal  estate  in  the  cestui 
que  trust,  being  a  case  'where  such  powers  or  duties  were  imposed 
with  the  estate  upon  a  donee  to  uses  that  it  was  necessary  that  he 
should  continue  to  hold  the  legal  title  in  order  to  perform  the  duty  or 


292  CONSTRUCTION TESTAMENTARY  TRUSTS  AND   POWERS 

execute  the  power.'  Perry  on  Trusts,  §  300 ;  also  Id.  §  305 ;  Kay  v. 
Scates,  37  Pa.  31,  78  Am.  Dec.  399,  and  note.  It  seems  to  be  equally 
well  settled  that  'where  the  instrument  is  free  from  ambiguity,  and 
there  is  no  imperfection  or  inaccuracy  in  its  language,  the  testator's 
intention  is  to  be  collected  from  the  words  used  by  him  and  parol  evi- 
dence is  not  allowable  for  the  purpose  of  adding  to  or  explaining  or 
subtracting  from  it,  or  to  raise  an  argument  in  favor  of  any  particu- 
lar construction.  Phil.  Ev.  545;  8  Bingham,  244;  Wigram  on  EC. 
Evidence,  65.  Extrinsic  evidence  of  intention  is  inadmissible  for  the 
purpose  of  supplying  a  devise  or  any  other  material  provision  omitted 
by  mistake,  or  to  superadd  any  qualification  to  the  terms  used,  or  to 
evince  a  mistake  in  writing  the  instrument.'  Stephen  v.  Walker,  8  B. 
Mon.  602.  It  is  not  necessary  here  to  inquire  whether  the  evidence 
introduced  would  be  sufficient  to  justify  a  discharge  of  the  trust  if 
the  will  had  provided  that  it  was  to  continue  only  until  the  daughter 
became  competent  to  manage  her  estate.  The  proposition  here  stated 
is  that,  under  the  terms  of  the  will  as  written,  no  evidence  can  be 
introduced  to  show  what  the  reason  was  for  the  devise  to  the  trustee, 
and  that  that  reason  never  existed  or  has  ceased  to  exist.  To  do  so 
is  to  superadd  a  qualification  to  the  terms  used,  and  by  parol  to  import 
into  the  will  an  intention  which  is  not  there  expressed.  Bingel  v. 
Volz,  142  111.  214,  31  N.  E.  13,  16  L.  R.  A.  321,  34  Am.  St.  Rep. 
64.  It  is  to  show  by  evidence  aliunde  a  different  intent  on  the  part 
of  the  testator  in  reference  to  the  devise  to  Euphemia  from  that  mani- 
fested by  the  language  of  the  will.  The  rule  was  stated  by  Judge 
Simpson  in  Stephen  v.  Walker,  supra:  'The  inquiry  must  be  confined 
to  the  meaning  of  the  words  used,  and  hence  all  extrinsic  evidence 
tending  to  prove,  not  what  the  testator  has  expressed,  but  what  he 
intended  to  express,  is  inadmissible.'  " 

The  question  involved  in  the  case  at  bar  is  not  to  be  .confused  with 
the  principle  that  a  dry  or  simple  trust  will  be  vacated  by  the  chancel- 
lor upon  the  request  of  the  cestui  que  trust.  A  dry  or  simple  trust  is 
one  as  to  which  the  trustee  has  no  duties  to  perform,  and  the  cestui 
que  trust  has  the  entire  management  of  the  estate.  It  is  a  simple  sep- 
aration of  the  equitable  and  legal  estates,  which  can  be  united  at  the 
option  of  the  cestui  que  trust.  Woolley  v.  Preston,  82  Ky.  415.  Xor 
is  it  to  be  confounded  with  those  trusts  which  are  created  upon  a 
declared  condition  which  has  passed  away;  the  reason  ceasing,  the 
trust  also  ceasing.  Such,  for  instance,  a  trust  established  for  the  bene- 
fit of  a  married  woman,  and  she  becomes  discovert.  In  that  case  the 
trust  will  cease  to  exist  when  the  declared  disability  ceases.  Thomas 
v.  Harkness,  13  Bush,  23.  The  case  at  bar  presents  an  active  trust, 
where  the  trustee  has  the  sole  management  and  control  of  the  estate, 
and  the  question  involved  is  whether  evidence  aliunde  can  be  intro- 
duced to  establish  for  a  testator  a  motive  for  his  action  when  he  has 
expressed  none  in  his  will,  and  where  his  language  is  perfectly  plain 


POWERS  293 

and  unambiguous.  This  we  hold  cannot  be  done,  and  Webster  v.  Bush 
is  no  longer  to  be  regarded  as  authority. 

It  seems  to  us  a  safer  rule  to  leave  intact  this  trust — the  result  of 
loving  foresight  reaching  into  the  future  to  shield  the  object  of  its  so- 
licitude after  the  heart  which  it  inspired  has  ceased  to  beat — than  to 
subject  it  to  the  vicissitude  of  a  judicial  inquiry  based  upon  the  careless 
opinions  of  witnesses  as  to  the  sufficient  restoration  of  the  beneficiary's 
mind  to  warrant  the  nullification  of  the  will  of  the  donor. 

The  judgment  dismissing  the  petition  is  affirmed. 


IV.  Powers* 


YOUNG  v.  HILLIER. 

(Supreme  Judicial  Court  of  Maine,  1907.     103  'Me.  17,  67  Atl.  571,  125  Am. 

St.   Rep.  283.) 

SAVAGE,  J.5  This  is  a  real  action  which  involves  a  construction  of 
the  will  of  Nathan  P.  Marston.  The  particular  clauses  which  are  in 
question  are  these: 

"Item.  I  give,  devise  and  bequeath  to  my  wife,  Elizabeth  A.  Mars- 
ton,  all  my  estate  both  real  and  personal  wherever  found  and  however 
situate  for  her  use  during  life. 

"Item.  At  the  death  of  my  said  wife  Elizabeth,  whatever  may  re- 
main of  said  estates,  I  give,  devise  and  bequeath  to  my  daughter 
Elizabeth  A.  Young." 

Elizabeth  A.  Marston  is  now  deceased,  and  the  plaintiff,  who  is  the 
Elizabeth  A.  Young  named  in  the  second  devise,  claims  title  as  re- 
mainderman. The  defendant  claims  title  under  Elizabeth  A.  Marston, 
who  in  her  lifetime  mortgaged  the  demanded  premises  to  Mary  F. 
Blethen.  The  mortgage  was  foreclosed,  and  subsequently  the  premises 
were  conveyed  by  the  mortgagee  to  the  defendant,  Mrs.  Marston  join- 
ing in  the  deed  as  a  grantor. 

There  can  be  no  question  but  that  the  first  clause  of  the  will,  above 
quoted,  standing  alone,  created  a  life  estate  in  the  widow,  and  only  a 
life  estate. 

It  follows  that  the  only  question  at  issue  is  whether  by  the  terms 
of  the  will,  properly  interpreted,  a  power  of  disposal  was  annexed  to 
the  devise  for  life.  If  so,  the  estate  demanded  now  belongs  to  the 
defendant.  If  not,  it  belongs  to  the  plaintiff. 

It  is  contended  by  the  defendant  that  from  the  use  of  the  words 
"whatever  may  remain  of  said  estates,"  in  the  devise  of  the  remainder 

*  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  144. 
c  The  statement  of  facts  is  omitted. 


294  CONSTRUCTION TESTAMENTARY  TRUSTS  AND   POWERS 

to  the  plaintiff,  it  is  to  be  implied  that  the  testator  intended  to  give- 
to  the  life  tenant  more  than  the  mere  use  of  the  estate,  real  and  per- 
sonal ;  that  he  intended,  in  fact,  to  give  her  a  power  of  disposal  both 
of  the  real  and  the  personal  estate. 

To  give  effect  to  the  intention  of  the  testator,  provided  it  is  con- 
sistent with  the  rules  of  law,  lies  at  the  foundation  of  every  judicial 
construction  of  a  will.  The  questions  always  are,  what  was  the  in- 
tention of  the  testator,  and  can  it  be  given  effect  without  violating  legal 
principles  ?  It  is  the  intention  as  expressed  that  must  control.  Cotton 
v.  Smithwick,  66  Me.  360.  The  language  must  be  construed  accord- 
ing to  settled  canons  of  interpretation  (Ramsdell  v.  Ramsdell,  21  Me. 
288),  even  though  it  may  defeat  the  probable  intention  (Pickering  v. 
Langdon,  22  Me.  413).  But  a  will,  if  ambiguous,  is  to  be  read  and 
construed  in  the  light  of  such  existing  conditions  as  may  properly  be 
supposed  to  have  been  in  the  mind  of  the  testator,  such  as  the  situa- 
tion and  relationship  of  his  beneficiaries,  and  the  situation  and  amount 
of  the  estate.  Smith  v.  Bell,  6  Pet.  (U.  S.)  74,  8  L.  Ed.  322;  Foll- 
weiler's  Appeal,  102  Pa.  581. 

After  making  provision  for  his  wife,  then  67  years  old,  by  creating 
a  life  estate  in  real  and  personal  property  for  her  use,  this  testator 
devised  "whatever  may  remain  of  said  estates,"  at  the  death  of  the 
wife,  to  his  daughter.  It  is  generally  conceded  that  by  the  use  of  such 
an  expression  in  the  devise  of  a  remainder  after  a  life  estate  is  ex- 
pressly created,  or  by  the  use  of  the  expression  "if  any  remains,"  or 
by  the  use  of  any  words  of  similar  import,  a  power  of  sale  is  an- 
nexed to  the  devise  of  the  life  estate  by  implication.  This  rule  has 
been  many  times  affirmed  in  this  state.  Ramsdell  v.  Ramsdell,  21  Me. 
288;  Shaw  v.  Hussey,  41  Me.  495;  Warren  v.  Webb,  68  Me.  133; 
Stuart  v.  Walker,  72  Me.  145,  39  Am.  Rep.  311;  McGuire  v.  Gal- 
lagher, 99  Me.  334,  59  Atl.  445.  So  in  Massachusetts.  Harris  v. 
Knapp,  21  Pick.  (Mass.)  412;  Johnson  v.  Battelle,  125  Mass.  453. 
Some  courts  have  held  that,  when  a  life  estate  in  both  real  and  per- 
sonal property  has  been  created,  a  devise  of  "whatever  remains,"  or 
the  use  of  words  of  similar  import,  annexes  to  the  life  estate,  by  im- 
plication, a  power  of  sale  of  the  personal  property  only.  In  Foote  v. 
Sanders,  72  Mo.  616,  for  instance,  a  case  cited  by  the  plaintiff  here, 
such  was  held  to  be  the  rule.  But  the  court  in  that  case  said  that  the 
contrary  doctrine  was  favored  by  the  cases  in  Maine  and  Massachu- 
setts, and  expressed  the  opinion  that  the  "extreme  views"  held  in  these 
two  states  were  met  and  answered  by  Smith  v.  Bell,  6  Pet.  (U.  S.) 
74,  8  L.  Ed.  322,  and  Brant  v.  Coal  &  Iron  Co.,  93  U.  S.  332,  23  L. 
Ed.  927.  In  this  connection  it  is  worth  while  to  notice  that  our  own 
court,  speaking  by  Chief  Justice  Peters  in  Stuart  v.  Walker,  72  Me. 
145,  39  Am.  Rep.  311,  characterized  Smith  v.  Bell  as  "a  case  differ- 
ing somewhat  from  many  of  the  authorities,"  and  declined  to  follow  it. 

But,  whatever  may  be  the  rule  in  other  states,  we  regard  it  as  well 
settled  in  this  state  that  such  an  implication  raised  from  the  general 


POWERS  295 

expression  "whatever  may  remain"  may  apply  to  real  estate  as  well 
as  to  personal  estate,  when  the  life  estate  consists  of  both,  and  will  so 
apply,  if  such  appears  to  have  been  the  intention  of  the  testator. 
Ramsdell  v.  Ramsdell,  21  Me.  288,  and  other  cases  cited,  supra.  So 
that,  if  such  an  intention  appears  in  this  will,  it  can  be  enforced. 

And  we  think  it  clear  that  such  was  the  testator's  intention.  He 
was  providing  for  an  aged  wife,  surely  in  greater  need  of  care  than 
the  daughter.  He  gave  her,  by  implication,  the  power  to  sell  some 
of  the  estate  at  least.  Was  that  power  intended  to  be  limited  to  the 
personal  estate?  It  is  hardly  credible  that  it  was.  The  personal  es- 
tate only  amounted  to  $186.25.  The  real  estate  from  which  she  could 
receive  only  the  income  or  use  unless  she  could  sell  it  amounted  to 
only  $800.  If  such  be  the  construction  of  the  will,  but  scant  provi- 
sion was  made  for  the  wife,  and  the  bulk  of  the  estate,  small  though 
it  was,  went  to  the  daughter  in  the  end.  But  we  are  not  left  to  con- 
jecture. The  testator,  having  created  a  life  estate  in  real  estate  and 
a  life  estate  in  personal  estate  in  the  wife,  devised  "whatever  should 
remain  of  said  estates" — both  of  them.  It  was  not  whatever  should 
remain  of  his  estate  in  general,  but  whatever  should  remain  of  the 
real  estate  and  of  the  personal  estate.  The  word  "estates,"  in  the 
plural,  naturally  has  this  significance,  and  we  think  it  expressed  the 
real  intention  of  the  testator.  By  saying  that  only  so  much  of  the 
real  estate  as  might  "remain"  at  the  death  of  the  wife  should  pass  to 
the  daughter,  he  expressed  his  purpose  that  the  use  given  to  the  wife 
should  extend  to  a  sale  of  it,  if  she  wished  or  needed.  Otherwise  there 
is  no  practical  significance  in  the  use  of  the  word  "remain"  in  this  con- 
nection. 

Accordingly  the  law  implies  a  power  of  sale  as  annexed  to  the  estate 
for  life  in  the  real  estate.  That  power  was  effectually  exercised  by 
the  life  tenant  in  her  lifetime,  and  no  estate  in  remainder  in  the  real 
estate  fell  to  the  daughter  at  the  death  of  the  mother.  The  title  to  the 
demanded  premises  is  in  the  defendant. 

Judgment  for  the  defendant. 


296  LEGACIES 


LEGACIES— GENERAL— SPECIFIC— DEMONSTRATIVE 
—CUMULATIVE— LAPSED  AND  VOID— ABATE- 
MENT—ADEMPTION— ADVANCEMENTS 

I.  Legacies 

1.  GENERAL  * 


EVANS  v.  HUNTER. 

(Supreme  Court  of  Iowa,  1892.    86  Iowa,  413,  53  N.  W.  277,  17  L.  R.  A.  308, 

41  Ain.  St  Rep.  503.) 

ROBINSON,  C.  J.  On  the  15th  day  of  April,  1885,  George  Roberts 
executed  a  will.  On  the  20th  day  of  November  he  died,  and  the  will 
was  duly  proven  in  the  proper  court.  The  plaintiff  is  the  executor 
named  in  the  will,  and  seeks  to  have  interpreted  two  of  its  paragraphs, 
which  are  as  follows:  "(1)  I  give  and  bequeath  my  daughter  Senna 
Hunter  four  thousand  dollars  in  United  States  government  bonds,  to 
be  delivered  to  her,  if  alive,  at  my  death ;  if  not,  to  her  children ;  and, 
if  she  has  none,  to  be  equally  divided  between  my  children,  or  theirs,  if 
they  are  deceased  at  my  death.  (2)  To-  Mary  Dawes,  my  eldest  daugh- 
ter, I  give  and  bequeath  one  thousand  dollars  in  United  States  govern- 
ment bonds,  and  five  hundred  dollars  in  cash,  and,  if  paid  before  my 
decease,  it  is  to  be  in  full  satisfaction  of  this  bequest  of  $500." 

The  plaintiff  contends  that  the  legacies  to  Mrs.  Hunter  and  Mrs. 
Dawes  are  general,  and  he  avers  that  he  has  offered  and  is  now  ready 
to  pay  the  former  $4,000,  and  the  latter  $1,500,  in  full  of  the  amounts 
to  which  they  are  entitled  under  the  will.  The  testator,  at  death,  left 
United  States  bonds  to  the  amount  of  $5,000;  and  appellant  contends 
that  the  legacies  of  bonds  are  specific,  and  that  the  legatees  are  entitled 
to  the  respective  amounts  of  bonds  due  them  under  the  will  from  those 
left  by  the  testator.  The  district  court  found  that  the  legacies  were 
general,  and  authorized  plaintiff  to  deliver  to  each  legatee  the  amount 
of  bonds  to  which  she  was  entitled  under  the  will,  in  any  bonds  of  the 
United  States.  It  will  be  noticed  that  the  bequest  to  appellant  was  of 
"four  thousand  dollars  in  United  States  government  bonds,"  without 
any  designation  of  the  source  from  which  they  were  to  be  obtained.  It 
is  insisted  that,  as  decedent  had  the  amount  of  bonds  required  by  the 
will  for  distribution  at  the  time  of  his  death,  it  is  fair  to  presume  that 
they  were  the  ones  contemplated  by  the  will.  It  is  not  shown  that  he 
owned  any  bonds  at  the  time  of  making  the  will,  but  it  is  possible  that 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  145. 


GENERAL  297 

he  then  had  them,  or  that  he  afterwards  obtained  them  for  the  pur- 
poses of  the  will.  That  may  be  conjectured,  but  is  not  shown.  Cer- 
tainly, it  is  not  expressed  in  the  will ;  and  it  is  the  general  rule  that  the 
intent  of  the  testator  must  be  gathered  from  the  will  without  the  aid 
of  extrinsic  evidence.  Schouler,  Wills,  §  567  et  seq.  It  was  said  by 
this  court  in  Alden  v.  Johnson,  63  Iowa,  127,  18  N.  W.  696,  that  "we 
can  look  only  to  the  will  itself,  guided  by  the  rules  of  interpretation,  in 
order  to  determine  the  intention  of  the  testator,  and  cannot,  for  that 
purpose,  resort  to  other  sources  to  discover  it."  "A  general  legacy  is 
one  which  does  not  necessitate  delivering  any  particular  thing,  or  pay- 
ing money  out  of  any  particular  portion  of  the  estate.  But  a  specific 
legacy  is  the  converse  of  this."  Schouler,  Ex'rs,  §  461.  See,  also, 
Redf.  Wills,  pt.  2,  p.  457. 

The  question  to  be  determined  is  whether  the  requirements  of  the 
will  can  be  satisfied  only  by  delivering  to  the  legatees  the  bonds  which 
the  testator  owned  at  death.  In  Sponsler's  Appeal,  107  Pa.  St.  95,  the 
will  under  consideration  contained  a  provision  as  follows :  "I  also  give 
and.  bequeath  to  her,  the  said  Alice,  fifteen  shares  of  second  preferred 
Cumberland  Valley  Railroad  stock,  and  one  second  mortgage  $500  bond 
(No.  1)  of  said  railroad  company."  A  codicil  contained  the  following : 
"I  further  give  to  my  cousin  Alice  Pheem,  in  addition  to  what  I  have 
given  her  by  my  will,  fifteen  shares  of  Cumberland  Valley  Railroad 
stock,  preferred;  one  Cumberland  Valley  Railroad  eight  per  cent, 
bond ;  and  thirty  shares  of  Carlisle  Deposit  Bank  stock."  It  was  held 
that  the  legacy  of  the  railroad  stock  was  general,  and  that  the  fact  that 
the  testator  had  only  15  shares  of  the  stock  described  when  he  made 
the  will,  and  when  he  died,  did  not  operate  to  make  it  special. 

The  facts  considered  in  Tifft  v.  Porter,  8  N.  Y.  516,  were  substan- 
tially as  follows :  The  testator  bequeathed  to  his  wife  240  shares,  and 
to  Harriet  S.  Glover  120  shares,  of  stock  of  the  Cayuga  County  Bank. 
He  owned  360  shares  of  that  stock  when  he  died.  The  court  defined 
"legacies"  as  follows :  "A  legacy  is  general  when  it  is  so  given  as  not 
to  amount  to  a  bequest  of  a  particular  thing  or  money  of  the  testator, 
distinguished  from  all  others  of  the  same  kind.  It  is  specific  when  it 
is  a  bequest  of  a  specified  part  of  the  testator's  personal  estate  which  is 
so  distinguished," — and,  following  the  definition,  held  that  the  legacies 
of  stock  were  general.  A  bequest  of  a  specified  amount  in  public  funds 
or  stock  or  money  is  general,  but,  if  the  property  is  further  described 
as  being  then  owned  by  the  testator,  the  bequest  is  special.  Schouler, 
Ex'rs,  §  461.  A  specific  legacy  is  not  subject  to  contribute  to  any 
deficiency  which  may  occur  in  other  bequests,  nor  can  a  specific  legatee 
claim  to  have  any  deficiency  which  may  be  found  to  exist  in  his  legacy 
made  up  from  other  portions  of  the  estate.  Redf.  Wills,  pt.  2,  p.  462 ; 
Schouler,  Ex'rs,  §  461 ;  2  Williams,  Ex'rs,  1251. 

When  the  recognized  rules  of  interpretation  are  applied  to  the  will 
under  consideration,  its  legal  effect  is  not  doubtful.  There  is  no  am- 
biguity in  the  language  used.  Its  requirements  as  to  bonds  will  be  satis- 


298  LEGACIES 

fied  by  the  delivery  to  the  legatees  of  any  bonds  of  the  United  States 
in  the  amounts  specified.  Had  the  will  identified  the  particular  bonds 
which  were  owned  by  the  testator  at  the  time  of  his  death,  or  had  it 
described  them  as  belonging  to  him  when  the  will  was  executed,  and 
he  had  then  owned  them,  the  legacies  would  have  been  specific.  See 
Smith  v.  McKitterick,  51  Iowa,  548,  2  N.  W.  390.  But  the  language 
used  cannot  be  given  that  effect.  If  the  testator  had  never  owned 
bonds,  or,  having  them  to  the  amount  of  five  thousand  dollars,  he  had 
disposed  of  them  during  his  lifetime,  the  legacies  would  not  have  been 
defeated,  but  it  would  have  been  the  duty  of  the  executor  to  procure 
United  States  bonds  with  which  to  pay  them.  We  conclude  that  the 
legacies  are  general.  The  decree  of  the  district  court  is  therefore  af- 
firmed. • 


2.  SPECIFIC* 


TRUSTEES  UNITARIAN  SOCIETY  v.  TUFTS. 

(Supreme  Judicial  Court  of  Massachusetts,  1890.    151  Mass.  76,  23  N.  E.  1006, 

7  L.  R.  A.  390.) 

Action  by  the  trustees  of  the  Unitarian  Society  in  Harvard  against 
Larkin  T.  Tufts,  executor  of  Mary  E.  Pearson.  Judgment  was  rendered 
for  defendant,  and  plaintiffs  appealed. 

HOLMES,  J.  We  must  hold  the  legacy  in  the  fourth  clause  of  the 
will  specific,  although  we  cannot  but  fear  that,  if  the  testatrix  had  been 
fully  advised  of  the  consequences  of  making  a  legacy  specific,  she  would 
have  changed  her  will. 

The  legacy  is  of  "ten  shares  of  the  stock  of  the  Worcester  and 
Nashua  Railroad  Company."  By  the  fifth  clause  of  the  will  the  testa- 
trix gives  10  shares  to  another  legatee,  and  she  gives  none  of  it  to  any 
one  else.  At  the  time  of  making  her  will  she  owned  20  shares  of  the 
stock.  We  will  assume,  for  the  purpose  of  our  decision,  that  the  mere 
coincidence  between  the  amount  given  and  the  amount  owned  would 
not  make  the  legacy  specific,  both  being  round  numbers.  See  Tifft  v. 
Porter,  8  N.  Y.  516;  Bronsdon  v.  Winter,  1  Amb.  57;  Purse  v.  S'nap- 
lin,  1  Atk.  414;  Robinson  v.  Addison,  2  Beav.  515,  520.  This  might 
be  admitted,  perhaps,  without  at  all  questioning  White  v.  Winchester, 
6  Pick.  48.  But  White  v.  Winchester,  and  Metcalf  v.  Framingham  Par- 
ish, 128  Mass.  370,  373,  show  that  such  a  coincidence  is  an  important 
fact  to  be  considered  in  connection  with  the  language  of  the  will.  See 
Johnson  v.  Goss,  Id.  433,  436. 

Turning  to  the  language,  we  find  nothing  conclusive  in  the  fourth 
clause.  The  word  "the,"  preceding  "stock,"  is  ambiguous,  and  may  as 

2  For  further  discussion,  see  Gardner  on  Wills  (2d  Ed.)  §  146. 


DEMONSTRATIVE  299 

well  refer  to  the  stock  of  the  company  in  general  as  to  the  stock  owned 
by.  the  testatrix.  But  if  "my"  were  used  instead  of  "the,"  the  legacy 
would  be  specific.  Metcalf  v.  Framingham  Parish,  128  Mass.  370,  373 ; 
Appeal  of  Foote,  22  Pick.  299,  303.  See  Johnson  v.  Goss,  128  Mass. 
433,  435.  The  same  principle  applies  upon  equally  strong  grounds  when 
a  testator,  after  giving  legacies  of  stock  generally,  gives  the  rest  of  the 
stock  "standing  in  my  name."  Sleech  v.  Thorington,  2  Ves.  Sr.  560. 
See  Metcalf  v.  Framingham  Parish,  128  Mass.  370,  372 ;  Millard  v. 
Bailey,  L.  R.  1  Eq.  378;  Theob.  Wills,  (3d  Ed.)  100.  In  this  case  the 
eighth  clause  of  the  will  gives  "the  balance  of  my  stock  as  per  my 
stock-book,  my  furniture,  and  all  other  property  not  otherwise  disposed 
of  by  me."  This  language,  taken  with  the  facts,  makes  it  pretty  plain 
that  the  stock  disposed  of  by  the  testatrix  in  the  fourth  clause  was 
stock  then  belonging  to  her ;  and  the  conclusion  is  fortified  by  the  other 
clauses,  which  show  that  the  general  course  which  she  adopted  in 
making  her  will  was  to  take  up  different  items  of  her  property  as  it 
then  stood,  and  to  dispose  of  them.  The  words  used  describe  a  specific 
legacy  too  clearly  to  be  controlled  by  the  fact  that  the  proviso  discloses 
a  motive  which  might  be  conjectured  to  be  independent  of  the  form  in 
which  the  property  was  invested. 

The  republication  of  the  will  by  the  codicil  does  not  change  or  en- 
large the  meaning  of  the  words  of  the  will  on  which  the  plaintiff  must 
rely  in  order  to  recover  the  legacy.  It  follows  that  the  legacy  was 
adeemed  by  the  sale  of  the  stock.  Pattison  v.  Pattison,  1  Mylne  &  K. 
12 ;  Macdonald  v.  Irvine,  8  Ch.  Div.  101,  108.  See  Sidney  v.  Sidney, 
L.  R.  17  Eq.  65,  68. 

Judgment  for  defendant. 


L  ' 

3.  DEMONSTRATIVE* 


GELBACH  v.  SHIVELY. 

(Court  of  Appeals  of  Maryland,  1887.     67  Md.  498,  10  Atl.  247.) 

ALVEY,  C.  J.  This  case  was  brought  to  obtain  a  judicial  construc- 
tion of  the  will  of  George  Gelbach,  Jr.,  deceased,  and  to  have  deter- 
mined the  rights  of  certain  parties  thereunder.  George  Gelbach,  the 
testator,  died  in  February,  1880,  leaving  a  widow  and  two  children,  and 
four  grandchildren,  all  provided  for  in  his  will,  which  was  duly  admit- 
ted to  probate.  The  father  of  George  Gelbach,  Jr.,  had  died  in  1879, 
leaving  three  children,  including  George,  as  his  only  heirs  and  distribu- 
tees, and  he  left  a  small  estate,  consisting  of  real  and  personal  property, 
in  Pennsylvania,  where  he  died,  and  some  real  property  in  the  city  of 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  149. 


300  LEGACIES 

Baltimore.  George  Gelbach,  Jr.,  by  his  will,  after  giving  some  few 
legacies,  made  the  two  following  bequests :  "Item.  I  give  and  be- 
queath, out  of  the  portion  or  share  of  my  father's  estate  that  may  come 
to  me,  one  thousand  dollars  to  my  brother,  Joseph  Gelbach.  Item.  I 
give  and  bequeath  [out  of  the  share  or  portion  of  my  father's  estate 
that  may  come  to  me]  one  thousand  dollars  to  my  sister,  Elizabeth 
Shively."  He  then  devised  and  bequeathed  all  the  rest  and  remainder 
of  his  estate,  real  and  personal,  to  be  divided  into  three  equal  parts,  one 
of  which  parts  he  gave  to  his  wife  absolutely,  and  the  other  two-thirds 
he  gave  to  his  two  children  in  equal  parts,  in  trust  for  life,  with  re- 
mainder to  their  children.  The  estate  of  the  father  of  the  testator  was 
settled  after  the  death  of  George,  and  the  proceeds  of  that  estate,  both 
real  and  personal,  (with  the  exception  of  some  railroad  stock,  distrib- 
uted in  the  life-time  of  George,)  were  distributed,  and  the  portion 
thereof  distributed  as  George's  share  was  paid  over  in  equal  parts  to 
Joseph  Gelbach  and  Elizabeth  Shively,  on  account  of  the  legacies  to 
them  under  their  brother's  will.  The  amounts  received,  however,  from 
the  estate  of  the  father,  were  not  equal  to  the  amount  mentioned  in  the 
bequests  to  them  by  the  brother ;  and  they  now  claim  that  the  balance 
of  such  amounts  shall  be  made  up  from  the  general  personal  estate  of 
George,  the  testator.  And  whether  such  claim  can  be  maintained  de- 
pends upon  the  nature  and  distinctive  character  of  the  bequests ; 
whether  they  are  so  far  of  a  specific  character  as  to  be  exclusively  de- 
pendent for  their  payment  upon  the  sufficiency  of  the  estate  or  fund 
referred  to  as  the  source  of  payment,  and  out  of  which  the  amounts 
were  given,  or  whether  they  are  of  the  character  denominated  "demon- 
strative legacies  ?" 

Ordinarily,  a  legacy  of  a  sum  of  money  is  a  general  legacy;  but 
where  a  particular  sum  is  given,  with  reference  to  a  particular  fund  for 
payment,  such  legacy  is  denominated  in  the  law  a  demonstrative  legacy ; 
and  such  legacy  is  so  far  general,  and  differs  so  materially  in  effect 
from  one  properly  specific,  that  if  the  fund  be  called  in  or  fail,  or  prove 
to  be  insufficient,  the  legatee  will  not  be  deprived  of  his  legacy,  but  he 
will  be  permitted  to  receive  it  out  of  the  general  assets  of  the  estate. 
Dugan  v.  Hollins,  11  Md.  77.  But  such  legacy  is  so  far  specific  that  it 
will  not  be  liable  to  abate  with  general  legacies,  upon  a  deficiency  of 
assets,  except  to  the  extent  that  it  is  to  be  treated  as  a  general  legacy 
after  the  application  of  the  fund  designated  for  its  payment.  Mullins 
v.  Smith,  1  Drew  &  S.  204;  2  Wms.  Ex'rs,  995. 

The  authorities  seem  to  be  clear  in  holding  that  whether  a  legacy  is 
to  be  treated  as  a  demonstrative  legacy,  or  as  one  dependent  exclusively 
upon  a  particular  fund  for  payment,  is  a  question  of  construction,  to 
be  determined  according  to  what  may  appear  to  have  been  the  general 
intention  of  the  testator.  Creed  v.  Creed,  11  Clark  &  F.  509.  For,  al- 
though the  personal  estate  of  the  testator  is  the  primary  fund  for  the 
payment  of  legacies  generally,  particular  legacies  may  be  so  provided 
for  as  to  be  charged  upon  a  particular  fund  or  estate  exclusively.  As 


DEMONSTRATIVE  301 

was  said  by  the  lord  chancellor  in  Savile  v.  Blacket,  1  P.  Wms.  779 : 
"It  is  possible  for  a  legacy  to  be  charged  in  such  manner  upon  a  certain 
fund  as  that,  upon  its  failing,  the  legacy  shall  be  lost." 

Here  the  bequest  is  of  $1,000  out  of  the  testator's  share  or  portion 
of  his  father's  estate.  Does  this  amount  to  anything  more  than  a  testa- 
mentary assignment  or  relinquishment  of  the  testator's  interest  in  his 
father's  estate,  to  the  extent  of  the  legacies  mentioned,  in  favor  of  his 
brother  and  sister,  if  his  interest  should  prove  to  be  of  that  amount? 
The  language  of  the  bequests  would  seem  clearly  to  negative  the  idea 
that  the  testator  intended  that  any  portion  of  these  legacies  should  be 
paid  out  of  his  general  personal  estate,  (apart  from  that  acquired  from 
his  father ;)  and  he  manifestly  supposed  that  his  share  in  his  father's  es- 
tate would  be  sufficient  to  pay  the  amounts  mentioned  by  him.  The 
amount  necessary  to  pay  the  balance  of  these  legacies,  if  they  are  to  be 
paid  out  of  the  general  personal  estate  of  the  testator,  would  have  to  be 
raised  out  of  the  portions  given  to  the  testator's  wife  and  children ;  and 
we  are  clearly  of  opinion  that  such  result  would  contravene  the  inten- 
tion of  the  testator,  as  manifested  in  the  general  scheme  of  the  will, 
and  by  the  terms  of  the  bequests  themselves. 

It  is  certainly  true,  as  a  general  proposition,  as  was  said  by  the  vice- 
chancellor  in  Dickin  v.  Edwards,  4  Hare,  276,  that  where  a  testator  be- 
queaths a  sum  of  money  in  such  a  manner  as  to  show  a  separate  and 
independent  intention  that  the  money  shall  be  paid  to  the  legatee  at  all 
events,  that  intention  will  not  be  held  to  be  controlled  merely  by  a  direc- 
tion in  the  will  that  the  money  is  to  be  raised  in  a  particular  way,  or  out 
of  a  particular  fund;  but  where  the  legacy  is  so  specific  and  so  con- 
nected with  the  fund  appointed  for  its  payment  as  to  give  rise  to  the 
inference  that  the  legacy  would  not  have  been  given  but  for  the  fund 
as  a  means  of  payment,  there  the  legacy  will  fail  with  the  failure  of  the 
fund.  Mann  v.  Copland,  2  Madd.  223,  226;  Dicken  v.  Edwards,  4 
Hare,  276;  Creed  v.  Creed,  11  Clark  &  F.  509.  See,  also,  Hancox  v. 
Abbey,  11  Ves.  179. 

In  our  opinion,  it  is  clear  that  the  legacies  given  to  the  brother  and 
sister  are  not  general  legacies,  in  the  sense  that  they  are,  to  any  extent, 
payable  out  of  the  general  personal  estate  of  the  testator,  apart  from 
the  fund  out  of  which  they  were  made  payable ;  and  that,  to  the  extent 
of  the  deficiency  of  that  fund  to  pay  such  legacies  in  full,  they  must 
fail. 

It  follows  that  the  decree  of  the  twenty-eighth  of  March,  1887,  re- 
quiring the  balance  supposed  to  be  due  on  the  two  legacies  mentioned 
to  be  paid  out  of  the  general  assets  of  the  estate,  must  be  reversed,  and 
the  cause  remanded. 


302  LEGACIES 


II.  Ademption 
1.  BY  CHANGE  OF  SUBJECT-MATTER* 


In  re  BRIDLE. 
(Court  of  Common  Pleas  Division,  1879.    4  C.  P.  Div.  336.) 

Petition  by  Louisa  Bridle,  asking  for  the  payment  out  of  court  to 
her  of  £200. 

John  Bridle  died  in  1877.  By  his  will,  made  in  1872,  he  bequeathed 
to  the  petitioner  the  mortgage  of  £200  which  he  had  secured  to  him 
on  a  mortgage  of  premises  in  Melcombe  Regis.  The  petitioner,  against 
the  objection  of  the  executors  of  John  Bridle's  will  and  of  the  residu- 
ary legatees  thereunder,  introduced  evidence  that  in  1873,  the  mortgage 
above  mentioned  was  paid  off;  that  John  Bridle  paid  the  mortgage 
money  into  the  bank  of  Williams  &  Co. ;  that  he  had  a  regular  account 
at  that  bank;  that  he  did  not  pay  this  money  into  his  general  account, 
but  had  it  entered  in  his  name  to  a  separate  account,  which  he  opened 
with  the  bank  for  that  purpose ;  that  he  received  a  separate  pass-book  ; 
that  he  handed  this  pass-book  into  the  custody  of  the  petitioner,  stating 
to  her,  when  he  did  so,  that  it  was  the  money  he  had  received  from 
the  mortgage,  and  that  she  was  to  keep  the  book,  as  he  had  willed  the 
money  to  her,  for  her  to  receive  it  after  his  death,  and  stating  that  it 
would  show  that  the  money  was  for  her,  and  would  do  away  with  the 
necessity  of  altering  his  will  in  consequence  of  the  mortgage  being  paid 
off;  and  that  the  £200  remained  intact  in  the  bank  down  to  the  death 
of  John  Bridle,  he  only  drawing  the  interest  from  time  to  time,  and 
the  petitioner  retaining  possession  of  the  pass-book.  This  evidence  was 
uncontradicted.  Williams  &  Co.  paid  the  money  into  a  post-office 
savings  bank  in  the  name  of  the  registrar  of  the  County  Court  to  await 
the  decision  of  the  court. 

The  judge  ordered  the  costs  of  all  parties  to  be  paid  out  of  the  £200 
and  the  balance  to  be  paid  to  the  petitioner.  The  executors  and  residu- 
ary legatees  appealed. 

DENMAN,  J.6  The  testator  by  his  will  bequeathed  to  the  petitioner 
"the  mortgage  debt  of  £200  which  he  had  secured  to  him  on  a  mortgage 
of  premises  in  King  street,  Melcombe  Regis,  belonging  to  William 
Hardy."  It  is  impossible  to  read  those  words  without  seeing  that  the 
obvious  intention  of  the  testator  was  to  give  her  the  mortgage  itself. 
Has  there,  then,  been  an  ademption?  That  depends  upon  the  rule 
stated  by  Lord  Hardwicke,  C.,  in  Humphreys  v.  Humphreys,  2  Cox,  C. 

4  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  152. 
s  Parts  only  of  the  opinions  are  given. 


ADEMPTION  303 

C.  184,  where  he  said  that  "the  only  rule  to  be  adhered  to  was,  to  see 
whether  the  subject  of  the  specific  bequest  remained  in  specie  at  the 
time  of  the  testator's  death,  for,  if  it  did  not,  then  there  must  be  an 
end  of  the  bequest ;  and  that  the  idea  of  discussing  what  were  the  par- 
ticular motives  and  intention  of  the  testator  in  each  case  in  destroying 
the  subject  of  the  bequest,  would  be  productive  of  endless  uncertainty 
and  confusion."  *  *  *  In  the  case  of  a  specific  bequest  of  a  thing 
which  has  ceased  to  exist  during  the  lifetime  of  the  testator,  the  legacy 
is  adeemed. 

LINDLEY,  J.  I  am  of  the  same  opinion.  The  first  question  here  is 
what  was  bequeathed  to  Louisa  Bridle.  It  is  a  bequest  of  a  mortgage — 
a  specific  legacy.  The  only  other  question  is,  where  is  it?  It  is  not 
to  be  found;  and  there  is  an  end  of  it.  *  *  *  And  see  the  judg- 
ment of  Lord  Thurlow  in  Stanley  v.  Potter,  2  Cox,  C.  C.  180,  where  it 
was  held  that  a  bequest  of  a  debt  is  adeemed  by  the  debt  being  paid  to 
the  testator  in  his  lifetime,  whether  the  payment  be  compulsory  or  vol- 
untary, or  whether  the  sum  be  expressed  in  the  bequest  or  the  debt  be- 
queathed generally.  For  these  reasons,  I  am  of  opinion  that  the  peti- 
tioner is  not  entitled  to  the  £200,  and  the  judgment  of  the  County  Court 
judge  must  be  reversed,  with  costs. 

Judgment  reversed. 


2.  BY  SUBSEQUENT  PAYMENT  • 


IZARD  v.  HURST. 
(High  Court  of  Chancery,  1698.    2  Freem.  Ch.  224.) 

The  defendant's  testator  by  his  will  gave  his  four  daughters  £600 
apiece,  and  afterwards  married  his  eldest  daughter  to  the  plaintiff,  and 
gave  her  £700  portion;  after  that  he  makes  a  codicil  and  gives  £100 
apiece  to  his  unmarried  daughters,  and  thereby  ratifies  and  confirms 
his  will,  and  dies;  and  the  plaintiff  preferred  his  bill  for  the  legacy 
of  £600  given  to  his  wife  by  the  said  will ;  and  the  only  question  was, 
whether  the  portion  given  by  the  testator  in  his  lifetime,  should  be 
intended  in  satisfaction  of  the  legacy? 

And  held  [by  SIR  JOHN  TREVOR,  M.  R.]  that  it  should ;  and  agreed 
to  be  the  constant  rule  of  this  court,  that  where  a  legacy  was  given  to 
a  child,  who  afterwards  upon  marriage  or  otherwise  had  the  like  or  a 
greater  sum,  it  should  be  intended  in  satisfaction  of  the  legacy,  unless 
the  testator  should  declare  his  intent  to  be  otherwise;  and  it  was  said 
the  words  of  ratifying  and  confirming  do  not  alter  the  case,  though 
they  amount  to  a  new  publication,  being  only  words  of  form,  and  de- 
clare nothing  of  the  testator's  intent  in  this  matter. 

«  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  152. 


304  LEGACIES 


III.  Lapse  T 


In  re  WILBOR. 

(Supreme  Court  of  Rhode  Island.  1897.    20  R.  I.  126,  37  Atl.  634,  51  L.  R.  A. 
863,  78  Am.  St.  Rep.  842.) 

Opinion  on  the  construction  of  three  wills,  on  the  application  of 
Maria  H.  Wilbor  and  others. 

MATTESON,  C.  J.  This  is  a  case  stated  for  an  opinion  of  the  court, 
as  follows:  Three  sisters,  Charlotte  Wilbor,  Martha  T.  Wilbor,  and 
Eliza  Ann  Wilbor,  late  of  Newport,  deceased,  all  perished  in  the  same 
calamity, — the  burning  of  their  house  in  Newport.  They  left  instru- 
ments in  writing,  purporting  to  be  their  last  wills  and  testaments, 
which  have  been  duly  admitted  to  probate.  By  these  wills  each  testa- 
trix gave  and  devised  all  her  real  and  personal  estate  to  her  two  sisters, 
or  to  either  of  the  survivors,  and  to  their  heirs  and  assigns  forever, 
and  then,  having  first  directed  that,  after  the  decease  of  the  last  sister, 
the  necessary  debts  should  be  paid,  proceeded  to  give  to  her  two  nieces, 
Emily  N.  Wilbor  and  Maria  H.  Wilbor,  $500  each,  and  to  Thomas  W. 
Smith  $200.  The  legatee  Emily  N.  Wilbor  died  before  the  testatrices. 
The  only  heirs  at  law  of  the  testatrices  are  Abbie  R.  Richards,  Ann 
Elizabeth  Clarke,  Mary  H.  Adams,  Sarah  T.  Bliven,  and  Maria  H. 
Wilbor. 

Upon  these  facts,  the  questions  propounded  are:  (1)  What  is  the 
amount  of  the  legacies  to  which  Maria  H.  Wilbor  and  Thomas  W. 
Smith  are  respectively  entitled  under  the  wills?  (2)  What  portion  of 
the  estate  of  the  testatrices  passed  to  their  heirs  at  law?  As  all  three 
of  the  testatrices  lost  their  lives  in  the  same  disaster,  and  no  fact  or 
circumstance  appears  from  which  it  can  be  inferred  that  either  sur- 
vived the  others,  the  question  of  survivorship  must  be  regarded  as 
unascertainable,  and  hence  the  rights  of  succession  to  their  estates  are 
to  be  determined  as  if  death  occurred  to  all  at  the  same  moment.  Un- 
derwood v.  Wing,  19  Beav.  459,  4  De  Gex,  M.  &  G.  633 ;  Wing  v.  An-1 
grave,  8  H.  L.  Cas.  183;  Wollaston  v.  Berkeley,  2  Ch.  Div.  213;  In  re 
Wainwright,  1  Swab.  &  T.  257;  Scrutton  v.  Pattillo,  L.  R.  19  Eq.  369; 
Coye  v.  Leach,  8  Mete.  (Mass.)  371,  41  Am.  Dec.  518;  Johnson  v. 
Merithew,  80  Me.  Ill,  13  Atl.  132,  6  Am.  St.  Rep.  162;  Newell  v. 
Nichols,  12  Hun  (N.  Y.)  604;  Id.,  75  N.  Y.  78,  31  Am.  Rep.  424;  In  re 
Hall,  9  Cent.  Law  J.  381;  Russell  v.  Hallett,  23  Kan.  276;  Estate  of 
Ehle,  73  Wis.  445,  41  N.  W.  627 ;  24  Am.  &  Eng.  Enc.  Law,  1027-1032. 

If  all  three  of  the  testatrices  are  to  be  regarded  as  having  died  at  the 
same  moment,  it  follows  that  the  bequest  and  devise  in  each  of  their 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  154,  155. 


LAPSE  305 

wills  to  the  two  sisters,  or  either  of  the  survivors,  did  not  take  effect, 
there  being  no  interval  of  time,  as  between  the  deaths  of  the  three, 
during  which  titles  to  property  could  vest ;  and  the  wills  therefore  stand 
as  if  they  contained  only  the  bequests  to  the  legatees  subsequently  nam- 
ed, to  wit,  Maria  H.  Wilbor  and  Thomas  W.  Smith, — the  other  lega- 
tee, Emily  N.  Wilbor,  having  deceased  without  issue  before  the  deaths 
of  the  testatrices. 

We  are  therefore  of  the  opinion  (1)  that,  after  the  payment  of  the 
debts  of  each  testatrix,  Maria  H.  Wilbor  and  Thomas  W.  Smith  are 
entitled  to  the  legacies  of  $500  and  $200  respectively  bequeathed  to 
them  in  each  will,  to  be  paid  out  of  the  personal  estate  of  each  testatrix, 
if  the  personal  estate  is  sufficient,  and,  if  insufficient,  that  such  legacies 
shall  abate  proportionately ;  (2)  that  the  residue  of  the  personal  estate, 
if  any,  and  the  real  estate,  of  each  testatrix,  if  any,  passes,  as  intestate 
estate,  to  her  next  of  kin  and  heirs  at  law. 
DUNM.CAS.WILLS— 20 


306  LEGACIES  CHARGED  UPON  LAND  OR   OTHER  PROPERTY 


LEGACIES  CHARGED  UPON  LAND  OR  OTHER  PROP- 
ERTY 

I.  Legacies  Charged  Upon  Land  * 


SIMONSEN  v.  HUTCHINSON. 

(Supreme  Court  of  Illinois,  1907.    231  111.  508,  83  N.  E.  183.) 

VICKERS,  J.  This  is  a  bill  in  equity  to  obtain  a  construction  of  the 
will  of  Angeline  H.  Sawyer,  of  New  Haven,  Conn.,  who  died  testate 
on  January  21,  1907.  The  will  in  question  is  as  follows: 

"I,  Angeline  H.  Sawyer,  of  the  city,  town  and  county  of  New  Haven, 
state  of  Connecticut,  being  of  sound  mind  and  memory,  do  make  the 
following  my  last  will  and  testament,  hereby  revoking  all  former  wills 
made  by  me : 

"First.  I  direct  that  my  executrix,  hereinafter  named,  pay  my  just 
debts  and  funeral  expenses. 

"Second.  I  give  and  bequeath  to  my  daughter,  Mary  Elizabeth  Si- 
monsen,  the  sum  of  one  thousand  dollars  ($1000). 

"Third.  I  give  to  my  granddaughter  Frances  Marie  Sawyer  the  sum 
of  one  thousand  dollars  ($1000). 

"Fourth.  I  give  and  bequeath  to  my  granddaughters  Angie  Mary 
Hutchinson  and  Susie  Marion  Sawyer  the  sum  of  one  thousand  dollars 
($1000)  each.  If  either  of  them  should  die  before  this  takes  effect, 
leaving  no  issue,  I  give  and  bequeath  the  said  sum  of  one  thousand 
dollars  ($1000)  to  the  survivor. 

"Fifth.  My  son  Alvin  has  already  received  from  me,  as  an  advance- 
ment, the  sum  of  forty-five  hundred  dollars  ($4500)  and  more,  which 
sum  I  consider  to  be  his  full  share  of  my  estate,  and  I  therefore  make 
no  provision  for  him  in  this  will. 

"Sixth.  I  give  to  my  granddaughter  Edith  Benedict  Sawyer  the  sum 
of  two  thousand  dollars  ($2000)  and  also  the  sum  of  two  thousand 
dollars  ($2000)  to  her  brother,  my  grandson  Millard  Holton  Sawyer. 
In  case  either  of  my  two  grandchildren  last  named  shall  die  without 
issue  before  this  will  takes  effect,  I  direct  that  the  amount  given  to  the 
one  deceased  shall  go  to  the  other.  Should  they  both  die  before  my  will 
takes  effect,  I  direct  that  the  said  four  thousand  dollars  ($4000)  be  di- 
vided in  equal  shares  between  Mrs.  Mary  Elizabeth  Simonsen,  Angie 
Mary  Hutchinson  and  Susie  Marion  Sawyer. 

"Seventh.  Should  Frances  Marion  Sawyer  die  before  the  will  takes 
effect,  I  direct  that  the  amount  to  be  given  her  be  divided  equally  be- 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  158. 


LEGACIES   CHARGED   UPON   LAND  307 

tween  Edith  Benedict  Sawyer  and  Millard  Holton  Sawyer,  or  be  given 
to  the  survivor  of  them  in  case  one  of  them  shall  have  died,  or  in  the 
event  of  their  both  having  died  previous  to  this  will  taking  effect,  that 
said  one  thousand  dollars  ($1000)  be  then  equally  divided  between 
Mary  Elizabeth  Simonsen,  Angie  Mary  Hutchinson  and  Susie  Marion 
Sawyer. 

"Eighth.  All  the  rest  and  residue  of  my  estate  that  shall  remain 
after  the  satisfaction  of  the  above  legacies  and  payment  of  my  just 
debts  and  funeral  expenses,  I  give,  devise  and  bequeath,  in  equal 
shares,  to  Mary  Elizabeth  Simonsen,  Angie  Mary  Hutchinson  and 
Susie  Marion  Sawyer. 

"Ninth.  I  hereby  appoint  Mary  Elizabeth  Simonsen  executrix  of 
this  will. 

"In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  at  said 
New  Haven  this  16th  day  of  August,  1906. 

"Angeline  H.  Sawyer.     [Seal.]" 

At  the  time  of  her  death  the  testatrix  owned  personal  property  val- 
ued at  $4,582  and  real  estate  located  in  Illinois  valued  at  $5,500,  sub- 
ject to  an  mcumbrance  of  $1,000.  The  debts  of  the  estate,  including 
the  cost  and  expenses  of  administration,  amount  to  $2,186,  to  which 
must  be  added  $1,000  which  is  a  lien  upon  the  real  estate,  bringing  the 
total  liabilities  of  the  estate  up  to  $3,186.  Deducting  the  indebtedness 
from  the  estimated  value  of  the  estate,  we  have  $6,896  as  the  net  value 
of  the  entire  estate.  The  specific  legacies  under  the  will  aggregated 
$8,000.  It  is  therefore  apparent  that  the  personal  property  is  insuf- 
ficient to  pay  the  specific  legacies,  and,  unless  the  real  estate  is  charged 
by  the  will  with  the  payment  of  the  specific  legacies,  a  very  substantial 
portion  of  such  legacies  must  lapse. 

Appellants  contend  that  the  real  estate  passed  under  the  residuary 
clause  of  the  will,  and  that  it  is  not  charged  with  the  payment  of  any 
portion  of  the  specific  legacies.  Appellee  contends  that  under  the 
residuary  clause  of  the  will  the  real  estate  is  charged  with  the  payment 
of  the  legacies  and  debts,  and  that  it  is  only  the  residue,  if  any,  that 
passed  under  the  residuary  clause.  The  court  below  sustained  ap- 
pellee's contention,  and  entered  a  decree  making  the  legacies  a  specific 
charge  and  lien  on  the  real  estate,  and  ordered  the  executrix  to  adver- 
tise and  sell  the  same  for  the  purpose  of  discharging  the  specific  lega- 
cies mentioned  in  the  will.  Two  of  the  residuary  legatees,  Angie  M. 
Hutchinson  and  Susie  M.  Sawyer,  have  appealed  to  this  court  and  as- 
signed error  upon  the  decree  below. 

Personal  property  is  the  primary  fund  out  of  which  specific  legacies 
in  a  will  must  be  paid ;  and,  where  such  legacies  are  not  made  a  charge 
upon  real  estate  by  the  will  and  there  is  a  deficit  of  personal  property  to 
pay,  the  specific  legacies  must  lapse.  Heslop  v.  Gatton,  71  111.  528; 
Wentworth  v.  Read,  166  111.  139,  46  N.  E.  777;  Engelthaler  v.  Engel- 
thaler,  196  111.  230,  63  N.  E.  669;  Vestal  v.  Garrett,  197  111.  398,  64 
N.  E.  345.  While  this  is  a  general  rule,  it  is  also  well  established  that 


308  LEGACIES  CHARGED   UPON  LAND  OR   OTHER  PROPERTY 

when  the  intention  of  the  testator  to  charge  his  real  estate  with  a 
payment  of  specific  legacies  is  clear,  either  from  the  express  words  of 
the  will  or  by  necessary  implication  from  the  language  used,  legacies 
will  be  held  to  be  a  charge  upon  the  real  estate.  The  intention  of  the 
testatrix  in  the  case  at  bar  to  charge  the  real  estate  with  the  payment 
of  the  legacies  is  clearly  manifested  by  the  residuary  clause  of  the  will. 
That  clause  is  as  follows :  "All  the  rest  and  residue  of  my  estate  that 
shall  remain  after  the  satisfaction  of  the  above  legacies  and  payment  of 
my  just  debts  and  funeral  expenses,  I  give,  devise  and  bequeath,  in 
equal  shares,  to  Mary  Elizabeth  Simonsen,  Angie  M.  Hutchinson  and 
Susie  Marion  Sawyer."  It  will  be  noted  that  there  is  no  specific  devise 
of  real  estate  in  this  will.  Therefore  that  class  of  property  passed  by 
the  residuary  clause.  It  is  only  the  "rest  and  residue"  of  the  estate 
that  shall  remain  after  the  satisfaction  of  the  legacies,  debts,  and  fu- 
neral expenses  that  is  devised  in  the  residuary  clause. 

Where  pecuniary  legacies  are  given  generally  and  there  is  a  gift 
of  the  residue  of  the  estate,  the  whole  residue  being  blended  in  one 
mass,  it  is  now  the  settled  rule,  both  in  England  and  in  the  United 
States,  that  the  legacies  are  a  charge  upon  the  entire  residue,  includ- 
ing the  residuary  realty.  19  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  1354; 
Reid  v.  Corrigan,  143  111.  402,  32  N.  E.  387;  Williams  v.  Williams,  189 
111.  500,  59  N.  E.  966.  In  the  case  last  above  cited  the  language  of  the 
residuary  clause  was  as  follows :  "I  give  and  devise  all  the  rest,  resi- 
due, and  remainder  of  my  estate  after  my  debts  and  funeral  expenses 
are  paid,  to  my  sons  and  daughters,  to  share  and  share  alike."  This 
court,  in  deciding  that  the  residuary  clause  above  quoted  created  a 
charge  upon  the  real  estate  for  the  payment  of  legacies,  quoted  the 
following  language  from  Reid  v.  Corrigan,  supra:  "By  holding  that 
the  expression  'rest,  residue  and  remainder'  was  intended  to  limit  the 
devise  to  appellees  to  that  part  of  his  estate  which  should  remain  after 
deducting  all  that  had  been  previously  bequeathed  effect  can  be  given 
to  the  entire  will,  whereas,  to  say  that  by  their  use  he  intended  to  de- 
vise all  of  his  real  estate  not  previously  devised,  without  reference  to 
said  legacy,  we  are  forced  to  defeat  an  intention  as  clearly  expressed 
as  language  can  make  it,  or  attribute  to  him  the  inconsistency  of  hav- 
ing made  his  niece  the  object  of  his  bounty  by  words,  at  the  same  time 
intending  that  she  should  never  enjoy  that  bounty."  The  language  in 
the  will  under  consideration  expresses  the  intention  of  the  testatrix  to 
charge  her  real  estate  more  clearly  than  did  the  residuary  clause  in  ei- 
ther the  Corrigan  or  Williams  Case,  and  in  our  opinion  the  construc- 
tion of  the  wnl  in  question  must  be  controlled  by  the  rule  laid  down  in 
those  cases. 

There  is  no  error  in  the  decree  of  the  court  below.  The  decree  will 
therefore  be  affirmed.  Decree  affirmed. 


ENFORCEMENT  OF  CHARGE  309 


II.  Enforcement  of  Charge  * 


WILSON  v.  FOSS. 

(Supreme  Court  of  Nebraska,  1902.    2  Neb.  [Unof.]  428,  89  N.  W.  300,  7  Pro. 

Rep.  Ann.  531.) 

SEDGWICK,  C.  This  case  was  brought  to  this  court  from  the  dis- 
trict court  of  Richardson  county  upon  proceedings  in  error.  It  in- 
volves the  construction  of  the  will  of  Richard  S.  Molony,  Sr.  The  will 
and  codicil  were  executed  at  the  same  time.  Defendants  in  error,  who 
were  plaintiffs  below,  were  legatees  in  the  will  and  codicil,  each  being- 
given  a  specific  annuity  ;t  and  they  seek  in  this  action  to  have  their  an- 
nuities declared  a  charge  upon  the  land,  and  enforced  by  a  sale  of  the 
land.  The  defendants  (plaintiffs  in  error)  claim  through  the  same 
will.  Two  children  of  the  testator  were  residuary  legatees,  and  were 
also  appointed  executor  and  executrix  of  the  will.  No  power  to  sell 
land  is  expressed  in  the  will.  Without  an  order  of  court,  the  execu- 
tors sold  the  land  in  question  to  defendants,  who  took  their  warranty 
deeds  therefor,  for  full  value,  as  innocent  purchasers,  without  any  no- 
tice of  defects  in  the  title,  except  constructive  notice  given  by  the  pub- 
lic records;  the  will  having  been  duly  probated  and  recorded.  The 
trial  court  found  that  there  was  no  personal  estate,  and  this  finding 
is  supported  by  the  evidence. 

1.  The  first  question  is,  did  the  will  make  these  legacies  a  charge 
upon  the  land?     It  contained  these  provisions:    "Said  legacies  to  be 
paid  by  my  executor  out  of  my  estate;"  and,  "I  give  and  devise  all 
the  residue  of  my  estate,  both  real  and  personal,  to  my  two  children, 
Annie  H.  Neeley  and  Richard  S.  Molony,  Jr.,  to  be  divided  equally 
between  them,  and  to  their  heirs,  forever."     Under  these  'provisions, 
there  can  be  no  doubt  that  the  legacies  were  made  a  charge  upon  the 
land.     "If  legacies  be  given  generally,  and  afterwards  the  residue  of 
the  real  and  personal  estate  be  given  in  one  mass,  the  legacies  constitute 
a  charge  upon  the  whole  residuary  estate, — real  as  well  as  personal." 
Beach,  Wills,  §  248;   Turner  v.  Gibb,  48  N.  J.  Eq.  526,  22  Atl.  580; 
In  re  Newcomb's  Will,  98  Iowa,  175,  67  N.  W.  587. 

2.  The  plaintiffs  in  error  insist  that  their  grantors  being  executor 
and  executrix  of  the  will,  and  having  given  the  bond  prescribed  by  the 
statute  to  be  given  by  residuary  legatees,  the  land  thereby  became  ab- 
solutely the  property  of  the  residuary  legatees.     Our  statute  (Comp. 
St.  §  2679,  Decedent  Act,  ,§   165)  provides  that  executors  who  are 
residuary  legatees  may  give  a  bond  conditioned  "to  pay  all  the  debts 
and  legacies  of  the  testator,"  and  when  such  bond  is  given  they  take 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  160,  161. 


310  LEGACIES  CHARGED  UPON  LAND  OR   OTHER  PROPERTY 

the  estate  absolutely.  The  bond  takes  the  place  of  the  property,  so 
far  as  creditors  and  other  legatees  are  concerned.  Buel  v.  Dickey,  9 
Neb.  285,  2  N.  W.  884.  But  the  bond  given  in  this  case  did  not  comply 
with  the  provisions  of  the  statute  in  that  regard.  Its  condition  was 
not  to  pay  all  the  debts  and  legacies  of  the  testator,  but  so  to  administer 
''according  to  law,  and  to  the  will  of  the  testator,  all  his  goods,  chat- 
tels, rights,  and  estate  which  shall  at  any  time  come  to  their  posses- 
sion, or  to  the  possession  of  any  other  person  for  him,  and  out  of  the 
same  shall  pay  and  discharge  all  debts,  legacies,  and  charges  charge- 
able on  the  same,  or  such  dividends  thereon  as  shall  be  ordered  and 
decreed  by  the  county  court."  This  bond,  clearly,  did  not  comply  with 
the  provisions  of  the  statute  relied  upon. 

3.  The  defendants,  having  taken  their  title  from  the  devisees  named 
in  the  will,  were  bound  to  take  notice  of  the  title  of  their  grantors  as 
disclosed  by  the  record,  and  cannot  now  claim  any  right  as  innocent 
purchasers.  The  decree  of  the  district  court  fixed  these  legacies  as 
charges  upon  the  land. 

It  is  recommended  that  the  decree  of  the  district  court  be  affirmed. 

OLDHAM  and  POUND,  CC.,  concur. 

PER  CURIAM.  The  conclusion  reached  by  the  commissioners  is  ap- 
proved, and,  it  appearing  that  the  adoption  of  the  recommendation 
made  will  result  in  a  right  decision  of  the  cause,  it  is  ordered  that  the 
decree  of  the  district  court  be  affirmed. 


PAYMENT  OF  TESTATOR'S  DEBTS  311 

PAYMENT  OF  TESTATOR'S  DEBTS 
I.  Primary  Liability  of  Personal  Estate* 


In  re  BANKS. 

BANKS  v.  BUSBRIDGE. 
(Supreme  Court  of  Judicature,  Chancery  Division.    [1905]  1  Ch.  547). 

BUCKLEY,  J.2  The  personal  estate  is  primarily  liable  for  the  pay- 
ment of  debts  and  funeral  and  testamentary  expenses ;  but  the  testator 
may  exonerate  it,  either  by  express  words  or  by  an  indication  of  in- 
tention to  be  found  in  the  will  which  leads  to  the  court  being  judicially 
satisfied  that  it  was  the  testator's  intention  to  exonerate  it.  It  is  not 
enough  that  he  charges  his  real  estate  with  the  payment  of  debts.  It 
is  necessary  to  find,  not  that  the  real  estate  is  charged,  but  that  the 
personal  estate  is  discharged.  This  need  not  be  done  by  express  words, 
but  there  must  be  found  in  the  will  plain  intention  or  necessary  im- 
plication to  operate  exoneration.  This  testator  gives  his  personal  es- 
tate to  Keziah  Ann  Banks.  He  specifically  devises  certain  real  estate, 
and  subject  to  that  devise,  devises  all  his  real  estate  to  his  trustees 
"subject  to  the  payment  of  my  just  debts  and  funeral  and  testamentary 
expenses." 

The  argument  addressed  to  me  has  been,  that  because  the  personal 
estate,  that  is  to  say,  the  whole  personal  estate,  is  given  to  Keziah  Ann 
Banks,  I  ought  to  find  in  that  fact  an  expression  of  intention  that  the 
personal  estate  shall  not  bear  the  debts  subject  to  which  the  real  es- 
tate is  afterwards  devised.  I  am  unable  from  that  fact  to  find  that 
intention.  There  is  an  indication  to  the  contrary  at  the  end  of  the 
will — namely,  that  the  testator  desires  that  none  of  his  real  estate  be 
sold  whilst  male  descendants  of  the  name  of  Banks  are  living.  In 
Brummel  v.  Prothero  (1796)  3  Ves.  Ill,  114,  the  Master  of  the  Rolls, 
Sir  Richard  Pepper  Arden,  says:  "This"  case  "is  stripped  of  every 
circumstance  except  that  of  a  devise  to  a  trustee  for  payment  of  debts 
and  a  general  bequest  of  the  personal  estate  to  the  executor.  There 
is  no  one  case  since  French  v.  Chichester  (1707)  3  Bro.  P.  C.  16  (2d 
Ed.),  the  first  upon  the  subject,  in  which  such  words  as  these  have 
been  alone  sufficient  to  exempt  the  personal  estate.  It  has  over  and 
over  again  been  decided  that  such  words  are  not  sufficient  to  raise 
such  a  demonstration  as  Lord  Thurlow  says,  in  Duke  of  Ancaster  v. 
Mayer,  1  Bro.  C.  C.  454,  is  necessary."  The  personal  estate  was  there 
held  not  to  be  exonerated,  and  that  notwithstanding  that  there  was  in 

1  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  162,  163. 

2  The  statement  of  facts  is  omitted. 


312  PAYMENT  OF  TESTATOR^  DEBTS 

that  case,  not  as  here  a  mere  charge  of  debts,  but  a  trust  to  pay  the 
debts. 

The  present  case  differs  in  the  fact  that  Keziah  Ann  Banks  is  not 
here  the  executor;  but  this  does  not,  I  think,  differentiate  the  case. 
A  gift  to  A.  is  none  the  less  a  beneficial  gift  because  A.  is  also  ap- 
pointed executor.  In  Haslewood  v.  Pope  (1734)  3  P.  Wms.  322, 
there  was  a  devise  of  real  estate  to  trustees  upon  trust  to  sell  so  much 
as  would  raise  money  to  discharge  all  the  debts  the  testator  should 
owe  at  his  death,  and  a  gift  of  all  the  personal  estate  to  the  testator's 
daughter,  whom  he  made  sole  executrix.  Lord  Talbot,  L.  C.,  held 
that  the  personal  estate  was  not  exonerated.  I  agree  that  there  was 
a  special  reason  upon  which  also  he  founded  himself,  namely,  that  the 
same  person  was  donee  of  the  personal  estate  and  also  devisee  of  the 
surplus  of  the  real  estate  in  tail.  The  passage  in  Mr.  Theobald's  book 
on  Wills  (6th  Ed.,  at  the  top  of  p«ge  802)  is  not,  I  think,  borne  out 
by  the  cases  which  he  cites.  There  was  in  those  cases,  not,  as  would 
seem  to  be  there  implied,  a  mere  charge  of  debts  on  the  real  estate 
(which  is  the  case  in  the  will  before  me),  but  a  trust  to  sell  the  real  es- 
tate and  thereout  pay  the  debts. 

There  is  nothing  more  here  than  a  devise  of  the  real  estate  subject  to 
the  debts.  In  my  judgment  the  personal  estate  is  not  exonerated,  and 
the  real  estate  is  only  charged  in  aid  of  the  personal  estate. 


II.  Exoneration  of  Mortgaged  Property* 


TURNER  v.  LAIRD. 

(Supreme  Court  of  Errors  of  Connecticut,  1896.    68  Conn.  198,  35  Atl.  1124.) 

Action  by  Edward  L.  Turner,  administrator,  against  Jessie  Laird 
and  others,  to  construe  the  will  of  Robert  Balfour,  deceased.  Re- 
served, on  the  facts  stated  in  the  pleadings,  for  the  consideration  of 
the  supreme  court. 

By  the  ninth  article  of  his  will  testator  devised  "the  Geer  House"  to 
his  grandson  in  fee,  subject  to  a  life  estate  in  the  widow.  In  the  tenth 
article  he  devised  half  of  his  residuary  estate  to  a  son  for  life,  re- 
mainder to  the  same  grandson,  and  the  other  half  to  another  son  in 
fee.  The  eleventh  article  provided  that,  should  the  grandson  die  leav- 
ing no  issue,  his  share  should  go  to  testator's  six  children,  share  and 
share  alike.  After  the  execution  of  the  will,  testator  mortgaged  the 
Geer  House  and  a  store  forming  part  of  the  residuary  estate,  to  secure 
a  note.  No  claim  on  such  note  was  ever  presented,  and  the  term  lim- 
ited therefor  had  expired;  but  one  payment  of  interest  on  the  Geer 
House  mortgage  was  made  by  the  administrator  before  the  time  lim- 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  165. 


EXONERATION  OF  MORTGAGED  PROPERTY  313 

ited  for  presentation  of  claims  had  expired.  The  personal  estate  was 
wholly  consumed  in  paying  debts,  legacies,  and  administration  expens- 
es, and  the  grandson  died  without  issue  during  the  life  of  the  widow. 
The  questions  for  the  determination  of  the  court  were,  whether  the 
mortgages,  or  either  of  them,  should  be  paid  by  the  administrator,  and, 
if  so,  out  of  what  funds. 

BALDWIN,  J.  A  specific  devise  of  land,  mortgaged  by  the  testator 
to  secure  his  own  debt,  prima  facie  imports  an  intention  that  such  debt 
shall  be  satisfied  out  of  the  general  personal  assets.  Hewes  v.  Dehon, 
3  Gray  (Mass.)  205.  In  the  case  at  bar,  this  presumed  intention,  with 
respect  to  the  Geer  House,  finds  additional  support  in  the  provision, 
made  by  the  testator  in  the  first  article  of  his  will,  directing  his  execu- 
tor to  pay  all  his  just  debts  and  funeral  expenses  and  the  legacies  sub- 
sequently given  out  of  his  estate.  The  word  "debts,"  in  such  a  con- 
nection, includes  mortgage  debts.  Bishop  v.  Howarth,  59  Conn.  455, 
465,  22  Atl.  432. 

That  the  holders  of  the  mortgages  in  question  did  not  present  their 
claims  against  the  estate,  did  not,  as  between  the  executor  and  the 
devisees  of  the  mortgaged  property,  discharge  his  obligation  to  pay 
them  off.  The  extent  of  the  testator's  bounty  to  his  grandson  could 
not  be  thus  reduced  by  the  acts  or  omissions  of  third  parties.  The 
plaintiff's  duty  was  the  same  as  if  the  devise  of  the  Geer  House  had 
been  followed  by  an  express'  direction  that  any  mortgage  upon  it  should 
be  paid  by  the  executor.  A  payment  thus  required  is  made  to  effectu- 
ate a  gift  from  the  testator  to  the  devisee.  It  may  be,  also,  the  satis- 
faction of  a  claim  legally  presented.  It  may,  on  the  other  hand,  be 
made  to  a  creditor  who  does  not  wish  to  receive  it,  but  prefers  to  let 
the  debt  remain  on  interest,  and  rely  on  his  collateral  security  for  its 
ultimate  discharge. 

The  residuary  devise  and  bequest  was  of  what  might  remain  "after 
the  payment  of  my  said  debts  and  funeral  expenses  and  the  preceding 
legacies  and  devise."  This  language  charged  on  the  residuary  real 
estate  all  debts  which  the  personal  estate  was  insufficient  to  satisfy. 
Enough  of  the  residuary  real  estate  must,  therefore,  be  sold  to  dis- 
charge the  mortgage  on  the  Geer  House.  That  on  the  store  build- 
ing should  be  satisfied  in  the  same  way,  unless  the  residuary  devisees 
otherwise  agree.  Section  556  of  the  General  Statutes,  which  provides 
that,  when  any  estate  devised  shall  be  taken  for  payment  of  debts,  a 
contribution  shall  be  due  from  the  other  legatees  or  devisees,  applies 
only  when  the  will  is  silent,  or  its  intent  uncertain.  Here  the  estate 
taken  is  residuary  estate,  and  the  testator  required  the  debts  to  be  paid 
before  the  residue  was  formed. 

The  superior  court  is  advised  that  it  is  the  duty  of  the  plaintiff  to 
pay  the  mortgage  on  the  Geer  House,  and,  if  requested  by  any  of  the 
residuary  devisees,  that  on  the  store  building,  and  that  the  requisite 
funds  should  be  raised  by  sale  of  so  much  as  may  be  necessary  of  the 
residuary  real  estate.  The  other  judges  concurred. 


314  ELECTION 

ELECTION 
I.  Necessity  of  Election1 

MOORE  v.  BAKER. 

(Appellate  Court  of  Indiana,  1892.    4  Ind.  App.  118,  30  N.  E.  629,  51  Am. 

St  Rep.  203.) 

Action  by  Lotta  Baker  against  John  E.  Moore,  executor,  for  the 
conversion  of  bank-stock.  Judgment  for  plaintiff.  Defendant  ap- 
peals. 

CRUMPACKER,  J.  On  the  26th  day  of  November,  1878,  James  W. 
Crowley  assigned  and  transferred  to  Susan  Crowley,  his  wife,  20 
shares  of  stock,  of  the  face  value  of  $100  each,  in  the  Howard  Na- 
tional Bank  of  Kokomo.  The  certificate  was  taken  up  by  the  bank, 
and  another  issued  to  Susan  Crowley,  and  thus  the  transfer  was  effect- 
ed on  the  bank  records.  On  the  same  day,  said  James  gave  his  wife 
a  warranty  deed  for  lot  69  in  the  original  plat  of  the  town  of  Kokomo. 
On  the  28th  day  of  that  month,  said  James  made  his  will,  by  the 
terms  of  which  he  devised  and  bequeathed  considerable  property  to 
his  said  wife,  among  which  was  the  lot  he  had  so  conveyed  to  her, 
and  "the  two  thousand  dollars  ($2,000)  of  stock  in  the  Howard  Na- 
tional Bank  of  the  city  of  Kokomo,"  to  be  transferred  to  her,  she 
to  have  the  proceeds  and  dividends  of  such  stock  during  her  life,  and 
at  her  death  it  was  bequeathed  absolutely  to  Lotta  Mitchell,  now  Lotta 
Baker,  the  appellee.  Said  testator  died  on  the  llth  day  of  January, 
1879,  and  his  will  was  duly  admitted  to  probate.  The  widow  elected 
to  take  under  the  provisions  of  the  will,  and  the  estate  was  administer- 
ed accordingly.  On  the  31st  day  of  December,  1884,  she  sold  and 
transferred  absolutely  said  bank  stock  to  one  Nathan  Pickett,  for  $2,- 
200.  She  died  testate  in  the  latter  part  of  the  year  1888,  in  Howard 
county;  and  John  E.  Moore,  the  appellant,  was  appointed  executor 
of  her  will.  The  appellee  filed  a  claim  against  the  executor  for  the 
conversion  of  the  stock  by  the  testatrix.  The  cause  was  taken  to  the 
Hamilton  circuit  court  on  change  of  venue,  where  it  was  tried  by  a 
jury,  and  resulted  in  a  verdict  in  favor  of  appellee  for  $2,708.33,  upon 
which  judgment  was  rendered.  From  such  judgment  the  executor 
appeals. 

It  was  shown  conclusively  that  the  testatrix  elected  to  take  under 
the  will  of  James  W.  Crowley,  and  that  the  bank-stock  mentioned  in 
the  will  was  the  same  stock  transferred  by  said  James  to  the  testatrix 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  169. 


NECESSITY    OF   ELECTION  315 

on  the  26th  day  of  November,  1878;  also,  that  the  testatrix  sold  the 
stock,  and  converted  the  proceeds  to  her  own  use.  Upon  these  facts 
the  court  directed  the  jury  to  return  a  verdict  in  favor  of  the  appel- 
lee, to  which  appellant  excepted.  Where  the  evidence  clearly  estab- 
lishes the  right  of  the  plaintiff  to  recover,  without  contradiction,  and 
no  defense  is  proven  against  such  right,  it  is  proper  for  the  court  to 
direct  a  verdict  for  the  plaintiff,  but  not  otherwise.  Hazzard  v.  Bank, 
72  Ind.  130;  Beckner  v.  Riverside,  65  Ind.  468. 

It  is  very  earnestly  insisted  on  behalf  of  appellant  that  the  transfer 
of  the  stock  to  the  testatrix  on  the  26th  day  of  November,  1878,  was  a 
valid  gift,  and  conferred  upon  her  an  absolute  and  indefeasible  title 
thereto,  and  that  James  W.  Crowley  had  no  right  to  afterwards  dispose 
of  it  by  will.  This  may  be  conceded ;  but,  when  the  testatrix  elected 
to  avail  herself  of  the  benefits  of  her  husband's  will,  she  was  thereby 
estopped  to  deny  his  right  to  dispose  of  the  bank-stock,  though  the 
title  was  in  her.  The  doctrine  of  election  is  of  equitable  origin,  and 
is  universally  recognized  in  this  country  and  England.  There  can  be 
no  election  unless  the  testator  confers  some  benefit  upon  the  devisee, 
and  by  the  terms  of  the  will  assumes  to  dispose  of  some  right  of  the 
latter.  Election  consists  in  the  exercise  of  the  choice  thus  offered  the 
devisee,  of  accepting  the  devise  and  surrendering  that  right  of  his 
which  the  will  undertakes  to  dispose  of,  or  retaining  such  right  and 
rejecting  the  devise.  He  cannot  have  both.  If  he  elects  to  take  under 
the  will,  he  is  bound  to  give  effect  to  all  of  its  provisions,  and  perform 
the  burdens  attached  to  his  benefit.  If  one  conveys  land  to  A.  as  a 
gift,  and  by  the  same  instrument,  or  as  part  of  the  same  transaction, 
gives  A.'s  horse  and  carriage  to  B.,  A.  is  required  to  elect  whether 
he  will  accept  the  land  and  give  up  his  horse  and  carriage,  or  retain 
them  and  reject  the  land.  If  he  accepts  the  benefit,  he  is  estopped  to 
deny  the  donor's  right  to  dispose  of  his  horse  and  carriage,  and  by 
such  acceptance  the  title  to  the  chattels  at  once  vests  in  B.  Thomas  v. 
Thomas,  108  Ind.  576,  9  N.  E.  457;  Ridgway  v.  Manifold,  39  Ind. 
58;  Sheddon  v.  Goodrich,  8  Ves.  481;  Arnold  v.  Gilbert,  3  Sandf. 
Ch.  (N.  Y.)  531 ;  Havens  v.  Sackett,  15  N.  Y.  365;  Painter  v.  Painter, 
18  Ohio,  247;  2  Redf.  Wills,  p.  359;  Pom.  Eq.  Jur.  §  461  et  seq. 
Applying  this  doctrine  to  the  case  in  hand,  when  the  testatrix  accepted 
the  benefits  of  her  husband's  will  she  was  bound  to  give  effect  to  its 
adverse  provisions,  and  was  estopped  to  deny  his  right  to  dispose  of 
the  bank-stock. 

A  number  of  questions  arising  upon  the  admission  and  rejection  of 
evidence  are  discussed  by  counsel  for  appellant,  but,  in  view  of  the 
fact  that  appellee  was  entitled  to  recover  upon  the  theory  we  have  in- 
dicated, such  questions  are  immaterial.  No  ruling  the  court  could 
have  made  respecting  them  would  have  affected  the  result  of  the  suit. 

It  is  also  argued  that  if  the  testatrix  had  no  right  to  sell  the  stock 
the  purchaser  obtained  no  title  thereto,  and  appellee's  remedy  was 
against  him  for  the  stock.  If  the  transfer  conferred  no  greater  right 


316  ELECTION 

upon  the  purchaser  than  the  testatrix  had,  the  appellee  was  not  bound 
to  follow  the  stock.     She  had  the  right  to  sue  for  its  conversion,  as 
she  has  done,  and  treat  the  title  as  vested  by  the  sale. 
There  is  no  error  in  the  record.    Judgment  affirmed. 


II.  Implied  Election— How  Effected8 


HOVEY  v.  HOVEY. 
(Supreme  Court  of  New  Hampshire,  1882.    61  N.  H.  599.) 

Probate  appeal.  Facts  agreed.  Isaac  B.  Hovey  died  testate  Janu- 
ary 10,  1872,  leaving  a  widow  (the  appellee)  and  one  child  (the  ap- 
pellant) by  a  former  wife.  The  material  provisions  of  the  will  are 
as  follows:  "Second — I  give,  bequeath  and  devise  to  my  beloved 
wife  the  use  improvement  and  income  of  all  my  real  estate,  and  all 
my  stock  and  farming  tools  on  my  place,  for  and  during  the  term  of 
ten  years  from  my  decease,  and  all  the  wood  she  may  need  for  her 
fire  or  fires  during  said  ten  years,  and  the  right  to  sell  enough  wood 
from  my  estate  to  pay  for  cutting.  I  also  give  and  bequeath  to  my 
said  wife  all  my  household  furniture,  excepting  such  articles  as  my 
son,  Isaac  R.  Hovey,  may  request  to  receive  which  were  the  property 
of  his  late  mother,  and  my  said  wife  may  be  pleased  to  deliver  to  him. 
I  also  give  and  bequeath  to  my  said  wife  my  bank  stock  and  railroad 
stock,  to  wit:  two  shares  in  the  Bay  State  Bank  at  Lawrence,  Mass., 
one  share  in  the  Union  Bank  in  Haverhill,  Mass.,  and  one  share  in  the 
Boston  &  Maine  Railroad;  to  her,  her  heirs  and  assigns  forever. 
Third — After  paying  my  just  debts  and  all  the  reasonable  expenses 
of  settling  my  estate  and  fulfilling  the  foregoing  specifications  of  this 
my  will,  I  give,  bequeath  and  devise  all  the  rest,  residue  and  remainder 
of  my  estate  to  my  son,  Isaac  R.  Hovey,  to  him,  his  heirs  and  assigns 
forever." 

The  will  was  duly  proved  in  January,  1872,  and  letters  testamentary 
issued  to  the  executor  named  therein.  By  the  inventory  filed  the  next 
month,  it  appears  that  the  decedent  left  real  estate  appraised  at  $4,042, 
and  personal  property  scheduled  at  $1,536.  Of  this  latter  sum  $616.- 
37,  was  made  up  of  the  stocks  and  furniture  mentioned  in  the  will. 

The  appellee  has  had  the  possession,  use,  and  income  of  all  the  tes- 
tator's real  estate  since  his  death,  and  has  received  from  said  executor 
the  personal  property  bequeathed  her.  June  15,  1881,  upon  her  peti- 
tion it  was  decreed  by  the  probate  court  that  dower  be  assigned  to 
her.  From  that  decree  this  appeal  was  taken. 

BLODGETT,  J.  While,  by  the  common  law,  dower  was  so  highly 
rated  in  the  catalogue  of  social  rights  as  to  be  placed  in  the  scale  of 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §  170. 


ELECTION   BY   SURVIVING   SPOUSE  317 

importance  with  liberty  and  life  (Park,  Dow.  2,  1  Scrib.  Dow.  21),  and 
although  favor  has  always  been  bestowed  upon  this  ancient  and  hu- 
mane provision  for  the  sustenance  of  the  widow  and  the  nurture  and 
education  of  her  children,  yet  if  by  the  will  of  her  husband  "some- 
thing is  offered  to  her  instead  of  dower,  and  the  alternative  is  fairly 
presented  to  her  mind,  she  will  be  bound  by  her  choice,  and  her  ac- 
ceptance of  such  other  thing  is  rightly  held  to  be  a  surrender  and 
release  of  her  alternative  right  of  dower."  Ladd,  J.,  in  Brown  v. 
Brown,  55  N.  H.  107.  Nevertheless,  the  mere  acceptance  of  a  testa- 
mentary provision  in  her  favor  will  not  deprive  a  widow  of  dower  in 
the  estate  of  her  deceased  husband  unless  he  so  intended;  but  when 
the  intent  appears  from  the  will,  itself,  or  it  is  proved  by  other  com- 
petent evidence  that  the  provision  was  intended  to  be  in  lieu  of  dower, 
she  must  elect  which  she  will  take. 

From  an  examination  of  this  will,  in  connection  with  the  statement 
of  facts,  we  are  of  opinion  that  the  bequests  to  the  appellee  were 
intended  by  the  testator  to  be  in  satisfaction  of  her  right  of  dower  in 
his  estate,  and  that  enough  appears  in  the  will  itself  to  put  her  to  an 
election ;  and  we  are  also  of  opinion  that  the  fact  that  she  acted  under 
the  will,  and  had  the  use  and  benefit  of  all  the  real  estate,  as  well  as 
the  farming  tools  and  stock  thereon,  for  more  than  nine  years  before 
making  any  claim  to  dower,  is  sufficient  to  estop  her  now  to  deny  an 
election  to  take  under  the  will.  Her  conduct  in  thus  receiving  and  en- 
joying for  so  long  a  period  the  valuable  and  profitable  gifts  conferred 
by  the  will,  and  to  which  she  was  not  otherwise  entitled,  may  well  be 
regarded  as  an  election  to  abide  by  the  will,  which  precludes  her  from 
claiming  dower;  and  to  hold  differently  would  be  to  give  her  an  un- 
conscionable advantage,  which  no  rule  of  law  or  equity  can  sanction. 
See  Bradford  v.  Kent,  43  Pa.  474;  Craig  v.  Walthall,  14  Grat.  (Va.) 
518;  Stark  v.  Hunton,  1  N.  J.  Eq.  216;  Thompson  v.  Hoop,  6  Ohio 
St.  480;  Big.  Estoppel  (2d  Ed.)  503.  The  appeal  is  sustained. 

Decree  of  probate  court  reversed.     All  concurred. 


III.  Election  by  Surviving  Spouse  * 


NORDQUIST'S  ESTATE  v.  SAHLBOM. 

(Supreme  Court  of  Minnesota,  1911.    114  Minn.  329,  131  N.  W.  323.) 

In  the  matter  of  the  estate  of  Elof  Nordquist,  deceased.  Lottie 
Sahlbom,  administratrix  of  the  deceased  wife  of  decedent,  filed  a  pe- 
tition to  take  under  the  statute  and  in  renunciation  of  the  will.  Pe- 
tition dismissed,  and  order  of  the  probate  court  affirmed  in  the  district 
court,  and  the  administratrix  appeals. 

s  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  175-177. 


318  ELECTION 

BROWN,  J.  Elof  Nordquist  was  in  his  lifetime  the  owner  of  certain 
real  estate  and  personal  property  situated  in  Nobles  county,  this  state, 
wherein  he  resided.  On  May  6,  1907,  he  duly  made  and  executed  his 
last  will  and  testament,  wherein  and  whereby  he  devised  and  bequeath- 
ed a  part  of  his  property  to  his  wife,  disposing  of  the  remainder  to 
other  persons.  He  died  on  June  5,  1907,  and  the  will  was  there- 
after duly  admitted  to  probate.  At  the  time  of  the  execution  of  the 
will,  at  the  time  of  his  death,  and  thereafter  until  her  death,  the  wife 
was  insane,  and  under  guardianship.  She  died  April  8,  1908.  The 
will  was  admitted  to  probate  October  5,  1907.  One  Wickstrom  then 
was,  and  thereafter  until  her  death  continued  to  be,  the  guardian  of 
the  person  and  property  of  the  insane  wife.  The  wife  did  not,  in  writ- 
ing or  otherwise,  assent  to  the  terms  of  the  will.  Neither  did  she,  nor 
her  guardian,  nor  the  probate  court  for  her,  renounce  the  will  and 
elect  to  take  of  her  husband's  property  under  the  statutes.  Subsequent 
to  her  death,  appellant  herein  was  duly  appointed  administratrix  of  her 
estate,  and  on  December  8,  1908,  filed  with  the  probate  court  on  behalf 
of,  and  in  the  interests  of,  the  deceased  wife,  in  the  form  of  a  peti- 
tion, a  renunciation  of  the  will,  and  an  election  to  take  for  the  deceased 
wife  under  the  provisions  made  for  her  by  statute.  After  hearing  be- 
fore the  probate  court,  the  petition  was  dismissed.  The  administra- 
trix appealed  to  the  district  court,  where  the  order  of  the  probate 
court  was  affirmed.  The  appeal  to  this  court  followed. 

The  learned  trial  court  correctly  disposed  of  the  case.  It  is  well 
settled  that  a  husband  or  wife  may  dispose  of  his  or  her  property  by 
will,  as  they  may  see  proper,  subject  to  the  right  of  the  survivor  to  re- 
ject the  same  and  take  under  the  statute.  The  right  to  reject  the  pro- 
visions of  the  will  is  secured  by  section  3649,  Rev.  Laws  1905.  The 
failure  to  elect  within  the  time  and  manner  therein  provided  is  equiv- 
alent to  an  assent  to  the  disposition  of  the  property  as  fixed  by  the  will. 
Jones  v.  Jones,  75  Minn.  53,  77  N.  W.  551.  And  though,  if  the  sur- 
vivor be  insane  and  incapable  personally  of  making  the  election,  it 
may  perhaps  be  made  by  a  duly  constituted  guardian,  or  by  the  pro- 
bate court  (State  v.  Ueland,  30  Minn.  277,  15  N.  W.  245 ;  Washburn 
v.  Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324;  State  v.  Hunt,  88 
Minn.  404,  93  N.  W.  314),  the  right  is  personal  to  the  surviving  spouse, 
and  does  not  pass  on  his  or  her  death  to  the  personal  representative  or 
heirs.  In  re  Fleming,  217  Pa.  610,  66  Atl.  874,  11  L.  R.  A.  (N.  S.) 
379,  10  Ann.  Cas.  826;  Estate  of  Andrews,  92  Mich.  449,  52  N.  W. 
743,  17  L.  R.  A.  296.  The  authorities  are  practically  uniform  upon 
the  subject,  and  further  discussion  of  the  matter  will  serve  no  useful 
purpose.  The  authorities  are  all  collected  in  the  notes  to  the  cases 
last  above  cited.  Judgment  affirmed. 


BIGHTS   OF   BENEFICIARIES   NOT  PREVIOUSLY   DISCUSSED        319 


RIGHTS  OF  BENEFICIARIES  NOT  PREVIOUSLY  DIS- 
CUSSED 

I.  Interest  on  Legacies  * 


WOODWARD'S  ESTATE  v.  HOLTON. 

(Supreme  Court  of  Vermont,  1906.    78  Vt.  254,  62  AtL  718,  6  Ann.  Gas.  524.) 

Ann  J.  Stoddard  deceased  at  Westminster  September  29,  1899, 
leaving  a  will  which  was  duly  probated  by  the  probate  court  within 
and  for  the  district  of  Westminster  in  the  state  of  Vermont,  on  the  3d 
day  of  February,  1900.  Ira  B.  Holton,  Abbie  I.  Buck,  and  Anna  O. 
Phelps,  who  were  heirs  at  law  of  the  deceased  and  also  legatees  under 
said  will,  appealed  from  the  probate  and  allowance  of  said  will,  which 
appeal  is  dated  February  8,  1900.  The  cause  was  tried  by  jury  at  the 
September  term,  1901,  of  Windham  county  court,  and  resulted  in  a 
verdict  and  judgment  establishing  said  will.  Exceptions  were  taken 
by  said  contestants  to  the  Supreme  Court.  While  the  case  was  pend- 
ing in  Supreme  Court,  said  exceptions  were  waived,  and  on  December 
12,  1901,  said  judgment  of  the  county  court  establishing  said  will  was 
affirmed  and  certified  to  said  probate  court.  Such  proceedings  were 
then  had  in  said  probate  court  that  said  court  made  a  final  decree  of 
distribution  of  said  estate  on  the  theory  that  the  specific  cash  legacies 
should  draw  interest  after  one  year  from  the  death  of  the  testatrix. 
From  this  decree  the  executor  of  said  will  appealed  to  the  Windham 
county  court.  Said  court,  at  its  April  term,  1903,  rendered  judgment 
on  the  theory  that  said  legacies  should  draw  interest  after  one  year 
from  the  final  establishment  of  said  will  by  said  judgment  of  the  Su- 
preme Court.  To  this  judgment  said  legatees  excepted. 

MUNSON,  J.  The  case  calls  for  a  determination  of  the  time  from 
which  interest  should  be  allowed  on  legacies  given  without  testamen- 
tary provision  governing  the  allowance.  The  final  allowance  of  the 
will  which  gave  the  legacies  in  suit  was  delayed  by  an  appeal  from  the 
decree  of  the  probate  court  and  the  taking  of  the  exceptions  to  the 
Supreme  Court.  The  county  court  allowed  interest  after  the  expira- 
tion of  one  year  from  the  time  when  the  will  was  finally  established. 

This  court  has  undertaken  to  state  the  rule  governing  the  allow- 
ance of  interest  on  legacies  in  two  cases  of  comparatively  recent  date, 
Bradford  Academy  v.  Grover,  55  Vt.  462,  and  Baptist  Convention  v. 
Ladd,  58  Vt.  95,  4  Atl.  634.  In  neither  of  these  cases  was  the  court 
called  upon  to  determine  the  rule.  In  Bradford  Academy  v.  Grover 

i  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  183,  184. 


320         EIGHTS   OF   BENEFICIARIES   NOT  PREVIOUSLY   DISCUSSED 

it  was  said  that  legacies  ordinarily  draw  interest  after  one  year  from 
the  death  of  the  testator;  but  there  the  will  directed  the  payment  of 
interest  after  the  happening  of  a  certain  event,  and  the  scope  of  the 
decision  was  merely  that  the  general  rule  may  be  controlled  by  an 
express  provision  of  the  will.  In  Baptist  Convention  v.  Ladd  the 
court  stated  the  rule  as  follows :  "Legacies  in  this  state,  unless  other- 
wise controlled  by  the  will,  draw  interest  after  one  year  from  the  pro- 
bate of  the  will."  In  this  case  the  legacy  had  been  paid,  and  the  court 
held,  that  the  payment  was  so  made  and  accepted,  that  there  was  an 
accord  and  satisfaction.  The  payment  was  long  after  the  expiration 
of  one  year  from  the  probate  of  the  will,  and  no  interest  whatever 
was  included  in  the  payment.  It  being  considered  that  no  interest  was 
recoverable,  it  was  not  necessary  to  determine  the  amount,  and  no  use 
was  made  of  the  rule  as  stated.  There  are  some  well-established  ex- 
ceptions to  the  general  rule,  one  of  which  was  considered  in  Smith  v. 
Moore,  25  Vt.  127;  but  a  review  of  these  exceptions  is  not  essential 
to  our  inquiry. 

The  rule  adopted  by  the  ecclesiastical  courts,  which  has  become  the 
settled  rule  of  the  common  law,  requires  the  payment  of  interest  after 
one  year  from  the  death  of  the  testator.  But  in  states  where  the  stat- 
ute allows  one  year  from  the  granting  of  letters  for  the  payment  of 
debts  and  legacies  it  is  generally,  but  not  universally,  held  that  lega- 
cies draw  interest  only  after  the  expiration  of  a  year  from  the  issuance 
of  the  letters.  Some  of  these  statutes  are  specific  as  regards  the  time 
of  payment,  while  others  are  similar  to  ours.  Our  statute  does  not 
itself  fix  a  time  for  the  payment,  nor  forbid  the  payment  before  a  spec- 
ified time,  but  authorizes  the  probate  court  to  allow  a  time  which  shall 
not  in  the  first  instance  exceed  one  year,  and  provides  for  an  exten- 
sion of  the  time  when  the  circumstances  of  the  estate  require  it.  We 
think  that  statutes  of  this  character  were  not  intended  to  change  the 
rule  regarding  the  allowance  of  interest  on  legacies.  This  view  was 
taken,  and  persisted  in,  by  the  more  prominent  surrogate  courts  of 
New  York,  until  the  contrary  was  unmistakably  adjudged  by  the  Court 
of  Appeals.  Matter  of  McGowan,  124  N.  Y.  526,  26  N.  E.  1098.  The 
same  view  was  afterwards  taken  by  the  New  Jersey  court,  in  an  opin- 
ion based  expressly  upon  the  reasoning  of  the  New  York  surrogates. 
Davison  v.  Rake,  45  N.  J.  Eq.  767,  18  Atl.  752. 

It  has  always  been  considered  that  convenience  requires  the  adop- 
tion of  some  definite  general  rule  to  govern  cases  of  this  class,  and  it 
has  always  been  conceded  that  any  rule  that  may  be  adopted  will  work 
some  inequality,  and  perhaps  hardship,  in  exceptional  cases.  Courts 
have  therefore  been  content  to  adopt  such  rule  as  seemed  to  them 
most  likely  to  prove  reasonable  and  convenient  in  cases  generally.  It 
seems  unnecessary  to  consider  the  various  reasons  that  have  been  ad- 
vanced in  support  of  the  rule  which  determines  the  time  by  the  death 
of  the  testator.  It  may  be  that  some  of  them  have  little  force  when 
the  rule  is  applied  in  connection  with  the  administration  laws  gen- 


ESTOPPEL  OF  BENEFICIARIES   TO   CONTEST   WILL  321 

erally  prevailing  in  this  country.  But  the  rule  has  certain  advantages 
which  we  consider  sufficient  to  overcome  all  objections.  It  bases  the 
allowance  of  interest  upon  an  initial  point  that  cannqt  be  moved  by 
the  various  accidents  of  settlement,  and  thus  enables  a  testator  to  give 
certainty  to  his  bequests  without  the  use  of  special  provisions.  It  ac- 
cords substantially  with  what  may  properly  be  considered  the  inten- 
tion of  a  testator  whose  will  is  silent  as  to  interest ;  for  it  is  doubtless 
true  that  wills  are  ordinarily  made  in  expectation  of  the  usual  course 
of  settlement.  But,  if  the  probating  of  the  will  or  the  granting  of 
letters  is  made  the  controlling  factor,  the  value  of  a  bequest  may  be" 
lessened  by  a  postponement  of  payment  without  interest,  on  the  hap- 
pening of  a  great  variety  of  contingencies  which  the  testator  cannot  be 
supposed  to  have  in  contemplation.  When  this  takes  place  the  scheme 
of  the  ordinary  will  is  reversed,  and  the  more  favored  bequests  are 
lessened  in  value  to  increase  the  remainder. 

Whatever  the  rule  in  this  state  may  have  been  heretofore,  we  hold 
that  pecuniary  legacies  draw  interest  after  one  year  from  the  death  of 
the  testator,  unless  the  will  provides  otherwise.  This  case  cannot  be 
made  an  exception  on  the  ground  that  the  contest  which  delayed  the 
settlement  of  the  estate  was  participated  in  by  the  legatees  who  are 
claiming  the  interest.  Kent  v.  Dunham,  106  Mass.  590. 

Judgment  reversed,  and  judgment  for  the  face  of  the  legacies,  with 
interest  after  one  year  from  the  death  of  the  testator,  to  be  certified. 


II.  Estoppel  of  Beneficiaries  to  Contest  Will f 


KEYSv  WRIGHT. 

(Supreme  Court  of  Indiana,  1901.     156  Ind.  521,  60  N.  E.  309.) 

Action  by  Jane  M.  Keys  and  others  against  Elizabeth  A.  Wright  and 
others.  From  a  judgment  for  defendants,  plaintiffs  appeal. 

BAKER,  J.  Appellants  brought  this  action  to  contest  the  will  of 
Hannah  Moore  on  the  ground  that  the  testatrix  was  of  unsound  mind, 
and  that  the  alleged  will  was  unduly  executed.  Appellees  pleaded  two 
affirmative  defenses:  (1)  That  each  appellant  was  given  by  the  will 
certain  real  estate  in  severally,  and  immediately  after  the  will  was  pro- 
bated entered  under  the  will  into  possession  of  the  realty  so  devised, 
and  has  ever  since  remained  in  possession,  enjoying  the  rents  and 
profits ;  and  (2)  that  each  appellant  was  given  by  the  will  certain  real 
estate  in  severalty  and  immediately  after  the  will  was  probated,  with 
full  knowledge  of  the  mental  condition  of  the  testatrix  at  the  time  the 

2  For  discussion  of  principles,  see  Gardner  on  Wills  (2d  Ed.)  §§  187,  188. 
DUNM.CAS.WILLS— 21 


322         RIGHTS   OF   BENEFICIARIES   NOT   PREVIOUSLY    DISCUSSED 

will  was  executed,  and  of  the  manner  in  which  and  the  circumstances 
under  which  the  will  was  executed,  entered  under  the  will  into  posses- 
sion of  the  realty  so  devised,  and  has  ever  since  remained  in  possession, 
enjoying  the  rents  and  profits.  Appellants'  demurrers  to  these  answers 
for  want  of  facts  having  been  overruled,  judgment  was  entered  on  ap- 
pellants' refusal  to  reply. 

The  second  answer  shows  a  deliberate  election  to  take  under  the  will ; 
and  this  election  precludes  appellants  from  assailing  the  will's  validity. 
Lee  v.  Templeton,  73  Ind.  315;  Test  v.  Larsh,  76  Ind.  452;  Floyd  v. 
Floyd,  90  Ind.  130;  Palmerton  v.  Hoop,  131  Ind.  23,  30  N.  E.  874; 
Wilmore  v.  Stetler,  137  Ind.  127,  34  N.  E.  357,  36  N.  E.  856,  45  Am. 
St.  Rep.  169;  Holland  v.  Spell,  144  Ind.  561,  42  N.  E.  1014;  Wilson 
v.  Wilson,  145  Ind.  659,  44  N.  E,  665 ;  Lee  v.  Tower,  124  N.  Y.  370, 
26  N.  E.  943.  Whether  or  not  the  first  answer  is  good  is  made  a  moot 
question  by  the  state  of  the  record.  The  judgment  against  appellants 
for  their  refusal  to  reply  to  the  second  answer  is  unquestipnably  cor- 
rect. Their  refusal  to  reply  confirmed  their  admission  of  the  truth  of 
the  averments  of  the  second  answer.  They  assert  that  the  first  is  bad 
on  account  of  the  omission  of  the  allegation  of  knowledge,  which  is  the 
only  allegation  of  the  second  answer  that  is  not  in  the  first. 

It  is  idle  to  decide  whether  or  not  appellants'  acceptance  of  the 
devises,  without  knowledge  of  the  testatrix's  mental  unsoundness  and 
the  manner  in  which  and  the  circumstances  under  which  the  will  was 
executed,  would  defeat  their  action,  when  the  record  shows  a  judgment 
against  them  on  their  confession  that  they  had  such  knowledge.  If 
they  had  denied  the  answers,  and  if  there  had  been  a  general  verdict 
for  appellees,  the  judgment  on  such  verdict  would  have  to  be  reversed 
if  the  first  answer  was  bad,  because  the  record  would  not  show  that 
the  jury  had  found  the  additional  allegation  of  knowledge  in  the  second 
answer  to  be  true.  But,  if  there  had  been  a  special  verdict,  in  which 
all  the  averments  of  the  second  answer  were  found  to  be  true,  the  judg- 
ment would  not  be  reversed,  even  if  the  first  answer  was  bad.  Gunder 
v.  Tibbits,  153  Ind.  591,  55  N.  E.  762 ;  State  v.  Parsons,  155  Ind.  67,  57 
N.  E.  711 ;  Ewbank,  Mand.  §  257.  Surely,  a  finding  of  the  jury  can- 
not be  more  binding  upon  the  appellants  than  their  own  solemn  admis- 
sion on  the  record.  Judgment  affirmed. 


WEST  PUBLISHING  CO.,  PRINTERS,   ST.  PAUL,  MINH. 


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SITY  OF  CALIFORNIA 
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